Citation Nr: 21031149 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-27 677 DATE: May 20, 2021 ORDER Entitlement to service connection for muscle weakness is denied. Entitlement to service connection for muscular cramps is denied. REMANDED Entitlement to service connection for osteoarthritis is remanded. Entitlement to service connection for osteoporosis is remanded. FINDINGS OF FACT 1. The Veteran's muscle weakness and muscular cramps are symptoms of her service connected paresthesias of the bilateral upper and/or bilateral lower extremities. 2. The Veteran does not have a current disability, for which she is not service connected that is manifested by symptoms of muscle weakness or muscular cramps. CONCLUSIONS OF LAW 1. The criteria for service connection for muscle weakness have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for muscular cramps have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1988 to May 1989 and from January 1991 to September 1991. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript of the hearing has been associated with the claims folder. This matter was previously before the Board in July 2018 and was remanded for further development. While on remand, the regional office (RO) granted service connection in an August 2020 decision for several claims that were initially on appeal, which included service connection for speech impairment, paresthesias of the bilateral upper and lower extremities, voiding and bowel dysfunction, and dysphagia. The decision also awarded special monthly compensation for loss of use and aid and attendance. As this represents a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). With regard to the remaining issues, the Board finds that remand directives have been substantially complied with; therefore, the Board will proceed with adjudication of the claims of service connection for muscle weakness and service connection for muscular cramps. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that VA treatment records have been added to the record since issuance of the last supplemental statement of the case (SSOC); however, upon review of the new evidence, the Board finds that the evidence is not relevant to the issues of service connection for muscle weakness and muscular cramps. Therefore, remand is not necessary for these claims. Alternatively, the issues of service for osteoarthritis and osteoporosis require an additional remand and are discussed further below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2019). To establish a right to compensation for a present disability, a Veteran 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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for muscle weakness. 2. Entitlement to service connection for muscular cramps. The Veteran seeks service connection for a disability manifested by muscle weakness and muscular cramps. At the outset, the Board notes that the Veteran's complaints of muscle weakness and muscular cramps are symptoms and are not a "disability" for VA purposes. Therefore, the Board cannot grant service connection for a symptom. In addition, these symptoms have been attributed to disabilities for which the Veteran has been service-connected and is being compensate. The Board notes that in her May 2019 peripheral nerves examination, as well as, her central nervous system and neuromuscular disease examination, the Veteran was diagnosed with a neurodegenerative condition, namely complex regional pain syndrome (CPRS), type I, of the right arm. The examiner found symptoms of muscle weakness in the upper and lower extremities, and symptoms of cramps in the right upper extremity. As noted above, the Veteran has been service connected for paresthesias of the bilateral upper and lower extremities. Therefore, her symptoms of muscle weakness and muscular cramps have already been compensated, and additional compensation would violate the rule against pyramiding. See 38 C.F.R. § 4.14. Additionally, in her May 2019 muscles examination, the Veteran was diagnosed with cervical myositis, lumbar myositis, and chronic costochondritis. The Veteran is service connected for all these conditions. Therefore, any residuals such as her claimed muscle weakness has been compensated in the evaluation for these conditions. Furthermore, while the examination found reduced muscle strength in all extremities, the examiner concluded that there was no evidence of weakness associated with a muscle etiology or condition and noted that the decrease strength documented at her manual muscle test correlates with voluntary decrease muscle contraction to avoid pain. Therefore, since the Veteran's symptoms of muscle weakness and muscular cramps, are attributable to diagnosed disabilities for which she is already service-connected and receiving compensation, there is no disability on which service connection can be granted. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds the preponderance of evidence is against the claims and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claims of service connection for muscle weakness and muscular cramps are denied. REASONS FOR REMAND 1. Entitlement to service connection for osteoarthritis is remanded. 2. Entitlement to service connection for osteoporosis is remanded. Pursuant to the Board's prior remand, medical opinions were obtained in May 2019 to determine the etiology of the Veteran's claimed osteoarthritis and osteoporosis. However, the Board finds these opinions are inadequate. With regard to osteoporosis, the examiner found that there was no objective evidence of osteopenia at the lumbar spine, nor was there evidence of osteoporosis at the elbow joint or knees. The examiner seems to suggest the Veteran does not have a current diagnosis of osteoporosis; however, an April 2014 pharmacy note shows the Veteran was diagnosed with osteoporosis. In addition, if the Veteran has a diagnosis of osteoporosis or osteopenia, clarification of these diagnoses is necessary as the Board is prohibited from making medical conclusions in the absence of supporting medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Given these inadequacies, the Board finds remand is warranted to obtain a new medical opinion to determine if the Veteran has a current diagnosis of osteoporosis, and if so, whether such condition was caused by active service or was caused by any one of her service-connected disabilities. Concerning service connection for osteoarthritis, the examiner found that the Veteran's lumbar degenerative disc disease is more likely related to the natural aging process; however, the examiner did not provide a medical rationale to support his opinion. Therefore, the opinion is inadequate, and remand is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Obtain a medical opinion to determine the etiology of the Veteran's osteoporosis and osteoarthritis. Afford the Veteran a VA examination only if deemed necessary by the examiner. The claims file, including this Remand, must be made available to and reviewed by the examiner. OSTEOPOROSIS: (a) Based on a review of the record and physical examination, the examiner is asked to provide an opinion as to whether the Veteran has a current diagnosis of osteoporosis or if she had a diagnosis of osteoporosis that has since resolved. The examiner must review and comment upon the previous diagnosis noted in the aforementioned April 2014 VA treatment record. (b) If and only if the Veteran is diagnosed with osteoporosis, then the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's osteoporosis had its onset during the Veteran's active service or is otherwise etiologically related to such service, to include her motor vehicle accident. (c) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's osteoporosis was proximately caused or aggravated by any of the Veteran's service-connected disabilities. OSTEOARTHRITIS: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's lumbar degenerative disc disease had its onset during the Veteran's active service or is otherwise etiologically related to such service, to include her motor vehicle accident. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's osteoarthritis was proximately caused or aggravated by any of the Veteran's service-connected disabilities. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, Associate 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.