Citation Nr: 21026099 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-30 021 DATE: April 29, 2021 ORDER The claim of entitlement to service connection for a left thumb condition is denied. The claim of entitlement to service connection for a left wrist condition is denied. The claim of entitlement to service connection for a head injury is denied. The claim of entitlement to service connection for high protein in urine is denied. The claim of entitlement to service connection for a skin rash is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a left thumb condition at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left wrist condition at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a head injury or residuals thereof at any time during or approximate to the pendency of the claim. 4. Protein in urine is a laboratory finding and is not considered a disability for VA compensation purposes. 5. The preponderance of the evidence of record is against finding that the Veteran has had a chronic rash condition at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left thumb condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left wrist condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a head injury or residuals thereof are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for high protein in urine are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a skin rash condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from March 1985 to March 1989. The instant matter is on appeal from a February 2015 rating decision. In the Veteran’s June 2016 Substantive Appeal, he requested a videoconference hearing before a Veterans Law Judge. In July 2020, he informed VA that he could not attend the scheduled hearing, but he wished to proceed with a decision based upon the evidence already of record. Other hearing options were presented to the Veteran, but he declined these options. Accordingly, the Board finds that the Veteran withdrew his request for a hearing, and adjudication may proceed on the merits. The Board notes that the Veteran identified private treatment records in conjunction with his present appeal. VA’s duty to assist includes assisting the Veteran in the procurement of relevant records. See 38 C.F.R. § 3.159 (c)(1). For records not in the custody of a Federal department or agency, such as these private treatment records, VA must make reasonable efforts to obtain these records. Id. In the present case, the Regional Office twice requested these records from the identified private providers. When no response was received, the Regional Office informed the Veteran in July 2014 of the attempts made to obtain these records, and they requested that he submit these records to VA in order to have them considered in his claim. Following that notification, no additional records were received. Accordingly, the Board finds that VA satisfied its duty to assist by making reasonable attempts to obtain identified private treatment records, and affording the Veteran an opportunity to provide such records. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Left Thumb The Veteran contends that he is entitled to service connection for a left thumb condition. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis pertaining to his left thumb and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records do not reflect a left thumb injury during service. The Veteran fell on his left hand during a basketball game in June 1988, but the only injury assessed pertained to his left wrist, not thumb. The Veteran’s separation examination failed to note complaints related to his left thumb or disabilities of that digit. The Veteran’s limited post-service records similarly fail to note a diagnosis of, or complaints related to, a disability of the left thumb. The Veteran has not provided lay statements addressing his claimed left thumb condition. Following a thorough review of the medical and lay evidence of record, the Board finds that the Veteran does not have a present disability of his left thumb. While the Veteran believes he has a current left thumb disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires medical training and experience to diagnose a disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not demonstrated that he has the requisite training or experience to render such a diagnosis. Further, the Veteran has not provided lay statements pertaining to his claimed left thumb condition that would shed further light on the nature of the purported disability. As the Veteran has not shown the requisite experience in order to provide competent medical nexus opinions, his lay assertions regarding the claimed thumb condition cannot be afforded probative weight. The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, even in light of Saunders, the Veteran still does not have a present disability pertaining to the left thumb as he does not have a diagnosis, and he has not reported pain causing functional impairment associated with the claimed condition. Based on such evidence, the Board finds that this case is distinguished from Saunders. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. While the McLendon factors set a low bar to trigger an examination pursuant to VA’s duty to assist, an examination is not required every time a claim is filed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is only required when necessary to decide a claim. Despite the permissive language of VA’s duty to assist, the Court has stated that “[i]f Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does.” Robinson v. Peake, 21 Vet. App. 545, 553 (2008); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant’s mere “conclusory generalized statement” that an in-service illness caused his current disability did not trigger VA’s requirement to obtain an examination, and it rejected the theory “that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues”). Here, there is no competent, credible evidence of a present diagnosis related to active duty service. Therefore, the RO did not err in its duty to assist by failing to provide an examination. Accordingly, the preponderance of the evidence of record supports a finding that the Veteran has not had a present disability of the left thumb, nor has he throughout the period on appeal. The rule regarding reasonable doubt is not for application, and the claim must be denied. Left Wrist The Veteran contends that he is entitled to service connection for a left wrist condition. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis pertaining to his left wrist and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records reflect that he fell on his left hand during a basketball game in June 1988. He sprained his left wrist in this incident, and received subsequent treatment. An in-service radiology report noted that there was no bony injury in his wrist as a result of his fall. The Veteran’s separation examination failed to note complaints related to his left wrist. The Veteran’s limited post-service records do not note a diagnosis of, or complaints related to, his left wrist. The Veteran has not provided lay statements addressing his claimed left wrist condition. Following a thorough review of the medical and lay evidence of record, the Board finds that the Veteran does not have a present disability of his left wrist. While the Veteran believes he has a current left wrist disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires medical training and experience to diagnose a disability. Jandreau, 492 F.3d at 1377. The Veteran has not demonstrated that he has the requisite training or experience to render such a diagnosis. Further, the Veteran has not provided lay statements pertaining to his claimed left wrist condition that would shed further light on the nature of the purported disability. As the Veteran has not shown the requisite experience in order to provide competent medical nexus opinions, his lay assertions regarding the claimed left wrist condition cannot be afforded probative weight. The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, even in light of Saunders, the Veteran still does not have a present disability pertaining to the left wrist as he does not have a diagnosis, and he has not reported pain causing functional impairment associated with the claimed condition. Based on such evidence, the Board finds that this case is distinguished from Saunders. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no credible evidence of a present diagnosis related to active duty service. Therefore, the RO did not err in its duty to assist by failing to provide an examination. Accordingly, the preponderance of the evidence of record supports a finding that the Veteran has not had a present disability of the left wrist, nor has he throughout the period on appeal. The rule regarding reasonable doubt is not for application, and the claim must be denied. Head Injury The Veteran contends that he is entitled to service connection for a head injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a head injury or related residuals, and he has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records reflect a slight head trauma in June 1986 after falling backwards. He was given light duty for 24 hours, and there were no residuals noted on subsequent examination. The Veteran’s separation examination did not note complaints related to this injury, and the physical evaluation was within normal limits. The Veteran’s limited post-service records do not note a diagnosis of, or complaints related to, a head injury or residuals thereof. The Veteran has not provided lay statements addressing his claimed head injury. Following a thorough review of the medical and lay evidence of record, the Board finds that the Veteran does not have a present disability of a head injury (or related residuals). While the Veteran believes he has a current residuals of a head injury, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires medical training and experience to diagnose a disability. Jandreau, 492 F.3d at 1377. The Veteran has not demonstrated that he has the requisite training or experience to render such a diagnosis. Further, the Veteran has not provided lay statements pertaining to his claimed head injury that would shed further light on the nature of the purported disability. As the Veteran has not shown the requisite experience in order to provide competent medical nexus opinions, his lay assertions regarding the claimed head injury cannot be afforded probative weight. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no credible evidence of a present diagnosis related to active duty service. Therefore, the RO did not err in its duty to assist by failing to provide an examination. Accordingly, the preponderance of the evidence of record supports a finding that the Veteran has not had a present diagnosis of a head injury or residuals thereof, nor has he throughout the period on appeal. The rule regarding reasonable doubt is not for application, and the claim must be denied. High Protein in Urine The Veteran contends that he is entitled to service connection for high protein levels in his urine. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a present disability for VA compensation purposes related to high levels of protein in his urine, and he has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records reflect a finding of intermittent proteinuria around May 1985, but he was cleared for full duty after three negative urinalysis tests. The Veteran’s separation examination did not note complaints related to proteinuria, and the physical evaluation was within normal limits. Even if there were current findings showing proteinuria, the Board notes that proteinuria is not a disability for which VA compensation may be awarded. Rather, it is a laboratory-confirmed clinical finding of high protein in the urine, which is not a disability. Although protein in the urine may be considered a risk factor in the development of certain diseases, it is not a disease, injury, or disability, in and of itself, for which VA compensation benefits are payable. Further, the term “disability” refers to impairment in earning capacity. See Allen v. Brown, 7 Vet. App. 439 (1995). The evidence does not suggest that any protein in the urine causes him any impairment of earning capacity. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the Veteran does not assert that these findings are related to a broader kidney condition or other diagnosed disability that may be eligible for VA compensation benefits. In fact, the Veteran has provided no lay statements pertaining to this laboratory finding. Based on the foregoing, entitlement to service connection for high protein in urine must be denied as a matter of law, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Skin Rash The Veteran contends that he is entitled to service connection for a skin rash. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a skin rash, and he has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records reflect treatment for a skin rash on the face and neck in January 1986 and January 1988. The Veteran’s separation examination did not note a rash at discharge, and his physical evaluation was within normal limits. The Veteran’s limited post-service records reflect burning and itching on his arms in July 2004 after something spilled on him at work. In July 2005, records report a diagnosis of contact dermatitis following complaints of a rash and itching on his arms and around the genital area. There is no indication of this condition being chronic or recurring following treatment. Following a thorough review of the medical and lay evidence of record, the Board finds that the Veteran does not have a present disability of a skin rash. While the Veteran believes he has a current skin rash condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires medical training and experience to diagnose a disability. Jandreau, 492 F.3d at 1377. The Veteran has not demonstrated that he has the requisite training or experience to render such a diagnosis. Further, the Veteran has not provided lay statements pertaining to his claimed skin rash that would shed further light on the nature of the purported disability. As the Veteran has not shown the requisite experience in order to provide competent medical nexus opinions, his lay assertions regarding the claimed skin rash condition cannot be afforded probative weight. As there is no indication that the Veteran has a present disability stemming from active duty service, an examination is not required for the purposes of adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no credible evidence of a present diagnosis related to active duty service. Therefore, the RO did not err in its duty to assist by failing to provide an examination. Accordingly, the preponderance of the evidence of record supports a finding that the Veteran has not had a present diagnosis of a chronic skin rash condition, nor has he throughout the period on appeal. The rule regarding reasonable doubt is not for application, and the claim must be denied. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.