Citation Nr: 21032873 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-53 794 DATE: May 28, 2021 ORDER Entitlement to service connection for a left hip disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a throat disability is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current left hip disability that began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1981 to August 1989. In July 2019, the Veteran testified at a Travel Board hearing in front of the undersigned Veterans Law Judge in Houston, Texas. A transcript of the hearing is of record. 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)). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lumbosacral strain, wrist sprain, and lateral collateral ligament (LCL) sprain are not chronic diseases under 38 C.F.R. § 3.309 (a). As such, 38 C.F.R. § 3.303 (b) is not applicable for the issues decided herein. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for a left hip disability The Veteran asserts that he is entitled to service connection for a left hip disability. However, based on the evidence of record, service connection is not warranted. With regard to a present disability, the record is negative for any diagnosed left hip disability. The VA and prison treatment records (TRs) do not show any left hip complaints, treatment, or diagnoses. The Veteran also does not claim that he has been diagnosed with a hip disability, only that he sometimes experiences left hip pain. There is no indication that this pain results in any functional limitation to qualify as a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Without evidence of a current left hip diagnosis or left hip pain resulting in functional impairment, the first element of Shedden/Caluza is not met. Further, with regard to an in-service event, the Veteran's STRs are negative for any complaints of left hip pain or treatment. The Veteran claims that he injured his left hip in an in-service MVA. Although the STRs show that the Veteran hit his head on the steering wheel of a Humvee in December 1986, there is no mention at all of left hip complaints or involvement. Despite multiple STRs subsequent to the December 1986 MVA, there is no mention of any left hip pain or related complaints. As there is no evidence of an in-service event or injury, the second element of Shedden/Caluza is not met. As the first and second elements of Shedden/Caluza are not met, service connection cannot be granted, and the issue of medical nexus need not be discussed further. The Board notes that the Veteran was not afforded a VA examination in conjunction with his left hip claim. However, as the evidence does not establish a current diagnosis and an in-service event or injury, a VA examination is not required for this claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, there is no evidence other than the Veteran's own general and unsubstantiated statements that his left hip complaints should be service connected to support a suggestion of a relationship. Such statements are not sufficient to trigger the need for a VA examination. See Waters v. Shinseki 601 F.3d 1274, 1278 (Fed. Cir. 2010). Accordingly, the Board finds that the claim of entitlement to service connection for a left hip disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in July 2020 were not adequate. The July 2020 VA-VES examiner diagnosed the Veteran with lumbosacral strain with a date of diagnosis of 1986. He concluded that the Veteran's lumbosacral strain was not related to service because there was no specific evidence that the disability was incurred in or caused by the Humvee incident and that there was clear and unmistakable evidence that the low back disability pre-existed service and was not aggravated therein. However, the conclusion that the lumbosacral strain was not incurred in service is inconsistent with the 1986 date of diagnosis given by the examiner. Further, the Board's review of the claims file did not reveal any evidence of a pre-existing low back disability on entrance to service and the examiner does not explain why he concludes that the low back disability pre-existed service. Although the evidence does not establish an in-service injury and does not meet the criteria for an examination under McLendon, supra, as one has been provided, VA has a duty to ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The low back claim must be remanded for an addendum opinion. 2. Entitlement to service connection for a left ankle disability is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in July 2020 were not adequate. The July 2020 VA-VES examiner diagnosed the Veteran with left lateral collateral ligament (LCL) sprain with a date of diagnosis of 1986. He concluded that the Veteran's LCL sprain was not related to service because there was no specific evidence that the disability was incurred in or caused by the Humvee incident and that there was clear and unmistakable evidence that the left ankle disability pre-existed service and was not aggravated therein. However, the conclusion that the LCL sprain was not incurred in service is inconsistent with the 1986 date of diagnosis given by the examiner. Further, the Board's review of the claims file did not reveal any evidence of a pre-existing left ankle disability on entrance to service and the examiner does not explain why he concludes that the left ankle disability pre-existed service. Although the evidence does not establish an in-service injury and does not meet the criteria for an examination under McLendon, supra, as one has been provided, VA has a duty to ensure that it is adequate. See Barr, supra. The left ankle claim must be remanded for an addendum opinion. 3. Entitlement to service connection for a right wrist disability is remanded. Regrettably, this claim must be remanded as the examination and opinion provided in July 2020 were not adequate. The July 2020 VA-VES examiner diagnosed the Veteran with right chronic wrist sprain with a date of diagnosis of 1986. He concluded that the Veteran's right wrist sprain was not related to service because there was no specific evidence that the disability was incurred in or caused by the Humvee incident and that there was clear and unmistakable evidence that the right wrist disability pre-existed service and was not aggravated therein. However, the conclusion that the right chronic wrist sprain was not incurred in service is inconsistent with the 1986 date of diagnosis given by the examiner and the qualification of the sprain as "chronic." Further, the Board's review of the claims file did not reveal clear and unmistakable evidence of a pre-existing right wrist disability on entrance to service and the examiner does not explain why he concludes that the right wrist disability pre-existed service. While there is a finding of a right wrist fracture at age 11 on his enlistment examination, the examiner indicated that it was healed with full range of motion. This history alone does not provide clear and unmistakable evidence of a pre-existing right wrist disability on entrance to service. Although the evidence does not establish an in-service injury and does not meet the criteria for an examination under McLendon, supra, as one has been provided, VA has a duty to ensure that it is adequate. See Barr, supra. The right wrist claim must be remanded for an addendum opinion. 4. Entitlement to service connection for a throat disability is remanded. The Veteran claims that he has a throat disability that first began in service. He, therefore, believes service connection is warranted. Despite evidence of a current diagnosis of a historical traumatic throat injury, documented in-service treatment for a sore throat, and his argument that his current throat disability is related to his military service, he has not been afforded a VA examination or opinion for this claim. See VA TR, January 2020; STRs. The Board finds that remand is warranted to obtain such an opinion. See McLendon, supra. The matters are REMANDED for the following actions: 1. Note that the Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed throat disability. The examiner(s) should obtain a thorough history from the Veteran. The examiner should identify any current throat disability. For each identified condition, they state whether it is at least as likely as not that the Veteran's throat disability is related to an in-service injury, event, or disease. The examiner must specifically address: (1) the December 1986 STR noting that the Veteran hit his head on the steering wheel of a Humvee, (2) the September 1987 STR showing treatment for strep pharyngitis, and (3) the October 1987 STR showing a sore throat for three weeks. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. Send the Veteran's claims file to an appropriate examiner(s) to provide addendum opinions regarding the nature and etiology of his low back, left ankle, and right wrist disabilities. The Veteran may be recalled for examination if deemed necessary. With regard to the low back disability: a) The examiner must state whether it clearly and unmistakably (undebatable) preexisted the Veteran's service documenting the evidence relied upon to make this determination. b) If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. c) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should specifically address: (a.) the normal enlistment examination as to the back, (b.) the lack of low back complaints during service, and (c.) July 2020 examiner's 1986 date of diagnosis for the lumbosacral strain. With regard to the left ankle disability: a) The examiner must state whether it clearly and unmistakably (undebatable) preexisted the Veteran's service documenting the evidence relied upon to make this determination . b) If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. c) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should specifically address: (a) the normal enlistment examination as to the left ankle, (b) the lack of left ankle complaints during service, and (c) July 2020 examiner's 1986 date of diagnosis for the LCL strain. With regard to the right wrist disability: d) The examiner must state whether it clearly and unmistakably (undebatable) preexisted the Veteran's service documenting the evidence relied upon to make this determination . e) If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. f) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should specifically address: (a) the normal enlistment examination as to the right wrist, including the finding that his right wrist fracture at age 11 was healed and he had full range of motion, (b) the lack of right wrist complaints during service, and (c) July 2020 examiner's 1986 date of diagnosis and use of the term "chronic" for the right wrist strain. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.