Citation Nr: 21027902 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-26 351 DATE: May 7, 2021 ORDER Entitlement to service connection for residuals of broken right leg is denied. REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had residuals of a broken right leg other than his already-service-connected status-post surgical ORIF/osteocentesis of the right knee with post-surgical complications and residuals and right hip joint replacement at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for residuals of a broken right leg other than his already service-connected status-post surgical ORIF/osteocentesis of the right knee with post-surgical complications and residuals and right hip joint replacement are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from March 1976 to June 1976 and in July 1981. The Veteran also had periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (1NACDUTRA). In a November 2019 Board of Veterans' Appeals (Board) decision, the Board found the VA had received relevant official service department records that existed and had not been associated with the claims file when the VA decided the appealed claims in May 1999 and December 2006. The Board's November 2019 rendered the May 1999 and December 2006 rating decisions non-final, and the question of a clear and unmistakable error (CUE) in the prior RO decisions was no longer ripe for adjudication. However, the RO has continued to list the claim for a CUE in the May 1999 and December 2006 as an issue on appeal. The Board continues to find that as the May 1999 and December 2006 decisions are no longer final decisions, the CUE claim has been rendered moot. Therefore, the Board will not address the Veteran's claim for a CUE with in the May 1999 and December 2006 rating decisions. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for residuals of broken right leg The Veteran claims entitlement to service connection for residuals of a broken right leg. The Veteran's injuries stem from a motor vehicle accident (MVA) sustained while the Veteran was on a period of INACDUTRA. Upon VA examination in September 2020, a VA examiner found the Veteran's right leg disorders were status-post surgical ORIF/osteocentesis of the right knee with post-surgical complications and residuals and right hip joint replacement. In November 2020, the RO granted service connection for a right hip disorder and for status-post surgical ORIF/osteocentesis of the right knee with post-surgical complications and residuals as related to the Veteran's MVA sustained during a period of INACDUTRA. The medical evidence of record does not establish that the Veteran's has any additional diagnoses of the residuals of the Veteran's broken right leg. The preponderance of the evidence shows no current impairment of residuals of the broken right leg other than status-post surgical ORIF/osteocentesis of the right knee with post-surgical complications and residuals and right hip joint replacement. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131. In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, for the reasons set forth above, the overall evidence of record weighs against a finding of an additional right leg disability at any time during the appeal period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim for service connection for residuals of a broken right leg other than status-post surgical ORIF/osteocentesis of the right knee with post-surgical complications and residuals and right hip joint replacement is denied. See 38 U.S.C. § 5107. REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran's claims. 1. Entitlement to service connection for a left hip condition The Veteran claims entitlement to service connection for a left hip condition. The Veteran has contended that his left hip has bothered him since the time of his MVA and alternatively is related to service as secondary to his right hip condition. The Veteran testified he had been diagnosed with major arthritis of the left hip. Further, the Veteran's wife testified at the November 2018 Board hearing that the Veteran had experienced chronic pain in the left hip as a result of compensating for his right leg and hip injuries. In September 2020, the Veteran was afforded a VA examination. The examiner did not find any conditions related to the left hip and provided that the left hip presentation did not establish any diagnoses. The Veteran indicated he used a wheelchair due to pain in his right hip. No functional testing was performed due to being wheelchair-bound. The Board acknowledges that the Veteran has alleged to the Board that he has pain in the left hip. See November 2018 Board hearing. In Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Court) addressed the issue of whether pain without an accompanying pathology can constitute a "disability" under 38 U.S.C. § 1110. The Federal Circuit held that the Veterans Court erred "as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a 'disability' under [38 U.S.C.] 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment." Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018) (overruling the Veterans Court's holding in Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)). The Federal Circuit concluded that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Further, the Court clarified that they "do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment." Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In this regard, the Board finds that the Veteran has credibly stated that he suffered from pain in his left hip during the appellate period. However, no medical examiner has opined whether the Veteran's pain in the left hip has resulted in a functional impairment as to warrant a finding of a current disability. According, a remand is required. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI) The Veteran asserts he has a diagnosis of residuals of a TBI, which is related to service. The Veteran was seen for a VA examination for residuals of a TBI in September 2020. The examiner found no evidence of a current disability. The examiner noted that the Veteran's medical records from the initial MVA did not include any treatment for a TBI. Further, the examiner notes that the Veteran had a stroke in 2019, but there was no mention of a TBI. The examiner also acknowledged the Veteran's lay reports of headaches resulting from his MVA and that he did not have a helmet on during the accident. The September 2020 VA examiner noted the Veteran had several current cognitive impairments to include deficiencies in memory, attention, and concentration; judgment; orientation; visual spatial orientation; subjective symptoms; and neurobehavioral effects. However, the examiner noted these cognitive impairments were not due to the Veteran's in-service motor vehicle accident. Rather, the examiner attributed the Veteran's deficiencies to the Veteran's history of stroke. The examiner noted that the Veteran's cognitive impairment was not present in the medical record until many years past the motor vehicle accident. The examiner noted the Veteran had psychological issues since service. The Board notes that the Veteran is service connected for an acquired psychiatric disorder. The Board finds that it is not clear that the September 2020 VA examiner considered the Veteran's subjective symptoms of a TBI to include his history of headaches and memory problems since the time of his motorcycle accident. The Board finds that an additional opinion is warranted to provide consideration of the Veteran's subjective symptoms since service and their relationship to the claimed TBI. The matters are REMANDED for the following actions: 1. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his left hip condition. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a.) The examiner should identify any currently diagnosed conditions of the left hip. If the Veteran does not have a diagnosable left hip condition, but has pain only, determine whether that pain causes functional loss. The examiner should provide written consideration of the Veteran's lay reports of pain in his left hip. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's left hip condition is due to or otherwise causally or etiologically related to his military service. (c.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's left hip condition is cause or aggravated by his service-connected right hip condition. Rationale must be provided for both causation and aggravation. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 2. Scheduled the Veteran for an appropriate VA examination to determine the nature, extent, onset, and etiology of his TBI. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a.) The examiner should identify all currently diagnosed TBIs, with consideration of the Veteran's complaints of TBI symptoms to include headaches and memory problems. (b.) If a diagnosis of TBI is established, the examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's TBI is due to or otherwise causally or etiologically related to his military service. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions (e.g., his statements about his head injury following the motorcycle accident including issues with memory problems and headaches) must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. (Continued on the next page) The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura C. Owens 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.