Citation Nr: 21039874 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-08 477 DATE: July 1, 2021 ORDER Entitlement to service connection for a left great toe disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for numbness of the right lower extremity, to include as secondary to a back disability is denied. Entitlement to service connection for numbness of the left lower extremity, to include as secondary to a back disability is denied. REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for numbness of the right upper extremity, to include as secondary to a cervical spine disability is remanded. Entitlement to service connection for numbness of the left upper extremity, to include as secondary to a cervical spine disability is remanded. REFERRED The issue of entitlement to service connection for a thoracolumbar spine and a cervical spine disability was raised in a January 2021 Supplemental Claim. The agency or original jurisdiction (AOJ) issued a rating decision in February 2021 but failed to address the cervical spine claim. Accordingly, the cervical spine service connection claim is referred to the AOJ for adjudication. FINDINGS OF FACT 1. The Veteran's left great toe disability did not incur during active service, was not caused by active service, and did not manifest without one year of separation from active service. 2. The Veteran's left shoulder disability did not incur during active service, was not caused by active service, and did not manifest without one year of separation from active service. 3. The Veteran's numbness of the bilateral lower extremities did not incur during active service and was not caused by active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left great toe disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for numbness of the right lower extremity, to include as secondary to a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 4. The criteria for entitlement to service connection for numbness of the left lower extremity, to include as secondary to a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty military service from May 1972 to May 1976 and from July 1979 to August 1987. The Veteran's service treatment records (STRs) from his first period of service are not available. See October 2010 Memorandum. In cases where records are presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board of Veterans' Appeals (Board) most recently remanded the matters for further development in May 2020. The Veteran testified before the Board and the undersigned Veterans Law Judge in October 2016. The Veteran's representative requested an additional hearing before the Board in December 2020 and April 2021. The Board notes "[t]he purpose of a hearing is to receive argument and testimony relevant and material to the appellate issue." 38 C.F.R. § 20.700(b). The Board further notes that VA regulation explicitly provides that "only one hearing before the Board will be conducted." 38 C.F.R. § 20.1507(b)(1). Therefore, the Board finds that there is no need for an additional hearing regarding the issues on appeal that are decided herein, as the Veteran has already been provided a hearing for the issues on appeal and decided herein, and he has not provided any good cause to warrant a second hearing. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left great toe disability The Veteran contends he injured his toe in 1982 when a truck-tire fell on his left great toe. See July 2012 VA examination. December 1984 service treatment notes (STRs) show the Veteran strained his toe when he hit it against furniture. During the October 2016 hearing, the Veteran reported he fractured his toe in service when a set of duals fell off the back of two and half ton truck. The Veteran was provided a VA examination in March 2019. The examiner diagnosed the Veteran with mild degenerative changes of the left great toe, and provided a negative nexus opinion. The Board found the rationale inadequate, and remanded the matter for an addendum opinion in May 2020. The Veteran was provided a new VA nexus opinion in September 2020. Based upon a review of the Veteran's claim file, the examiner provided a negative nexus opinion. Although the Veteran injured his toe in 1982 and 1984, the remaining STRs were silent for any residuals of the earlier injuries. The Veteran's degenerative changes did not manifest until 2012, which was many years after the separation in 1987. Therefore, the examiner found the left great toe disability was not related to active service. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a direct or presumptive basis. The Board notes that the Veteran's lay evidence and available STRs provide two incidents of left great toe injuries during the Veteran's second period of active service. Although the STRs from the first period of active service are unavailable, the Veteran does not content his toe condition is related the first period of active service. The 1987 separation examination showed no complaints of or diagnoses for any left great toe disability. The September 2020 VA examiner opined that the claimed condition less likely than not incurred in or was caused by the in-service injury. The first medical evidence of a diagnosed left great toe disorder was in July 2012, i.e., approximately 25 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran's left great toe for many years after service weighs against the claim. Regarding presumptive service connection, the Board finds that service connection for left great toe arthritis on a presumptive basis is not warranted, as the record does not show evidence of arthritis within one year of separation from active duty. The first competent evidence suggestive of arthritis was in 2012. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board acknowledges the Veteran and his representative's statements regarding the etiology of the Veteran's left great toe disability. Although they are competent to report the Veteran's symptoms, they are not competent to render a medical diagnosis and causation. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran and his representative's opinions by themselves are outweighed by the 2020 VA examiner's findings. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The claim is denied. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a left shoulder disability The Veteran contends he injured his left shoulder in 1973 when his shoulder was hit by the hood of a truck he was working on as a mechanic. See October 2016 Hearing Transcript. The Veteran was provided a VA examination in March 2019. The examiner diagnosed the Veteran with left acromioclavicular (AC) joint osteoarthritis, and provided a negative nexus opinion. The Board found the rationale inadequate, and remanded the matter for an addendum opinion in May 2020. The Veteran was provided a new VA nexus opinion in September 2020. Based upon a review of the Veteran's claim file, the examiner provided a negative nexus opinion. Although the Veteran injured his shoulder in 1973, the condition was acute because there is no additional evidence of continued treatment for the left shoulder. The Veteran's 1987 separation examination from his second period of active service noted normal upper extremities. The Veteran's left shoulder condition was not diagnosed until more than 20 years after separation from active service. Therefore, the examiner found the left shoulder disability was not related to active service. The Board notes the Veteran's STRs are unavailable for the first period of active service, which includes the Veteran's reported shoulder injury. There is evidence that a condition may have pre-existed the Veteran's second period of active service. When an issue is raised as to whether the disorder claimed by a veteran pre-existed service, the governing law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders "noted" at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby, 1 Vet. App. At 227). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). The presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See 38 C.F.R. § 3.304(b). The presumption of soundness is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn, 25 Vet. App. at 234. The Veteran's 1979 entrance examination was silent for any left shoulder disability; and therefore, the presumption of soundness must be rebutted to find the left shoulder disability pre-existed the second period of active service. The September 2020 VA examiner did not find clear and unmistakable evidence of a let shoulder disability pre-existing the second period of active service. Accordingly, a discussion as to aggravation of the left shoulder condition during the second period of active service is moot. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a direct or presumptive basis. The Veteran reported an injury in 1973. The September 2020 VA examiner opined that the claimed condition less likely than not incurred in or was caused by the in-service injury. The first medical evidence of a diagnosed left shoulder disorder was in June 2009, i.e., approximately 21 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran's left shoulder for many years after service weighs against the claim. Regarding presumptive service connection, the Board finds that service connection for left shoulder arthritis on a presumptive basis is not warranted, as the record does not show evidence of arthritis within one year of separation from active duty. The first competent evidence suggestive of arthritis was in 2009. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board acknowledges the Veteran and his representative's statements regarding the etiology of the Veteran's left shoulder disability. Although they are competent to report the Veteran's symptoms, they are not competent to render a medical diagnosis and causation. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. See Jandreau, 492 F.3d at 1372. Thus, the Veteran and his representative's opinions by themselves are outweighed by the 2020 VA examiner's findings. See King, 700 F.3d at 1339. The claim is denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for numbness of the bilateral lower extremities, to include as secondary to a back disability The Veteran contends that his bilateral lower extremity numbness was caused by his back disability. See October 2016 Hearing Transcript. In the March 2009 VA examination, the Veteran was diagnosed with osteoarthritis of the lumbar spine associated with sciatic radiculopathy involving both lower extremities. The Veteran was provided a VA examination in March 2019. The examiner diagnosed the Veteran with bilateral lower extremity radiculopathy. The Board found the radiculopathy correlated to the Veteran's back condition from 2009. There is no evidence of radiculopathy in the Veteran's STRs. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a direct or secondary basis. The Board notes that the Veteran's available STRs are silent for any symptoms or diagnoses related to numbness of either lower extremity. Although the STRs from the first period of active service are unavailable, the Veteran does not contend that the disabilities are related the first period of active service. The March 2019 VA examiner opined that the claimed condition less likely than not incurred in or was caused by the in-service injury. The first medical evidence of a diagnosed neurological disorder was in April 2009, i.e., approximately 22 years after his discharge from active service. Regarding the contention of secondary service connection, the AOJ most recently denied entitlement to service connection for a back condition in February 2021. This matter is not presently on appeal. Due to the denial of service connection for a back condition, Board is unable to causation due to the back condition as a basis to grant service connection. For the foregoing reasons, the claim is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a right eye disability is remanded. In the March 2019 VA examination, the Veteran was diagnosed with several eye disabilities. In May 2020, the Board remanded the matter for a VA addendum opinion in which the examiner was directed to provide nexus opinions for all right eye disabilities diagnosed during the appeal period. The Veteran was provided with a negative nexus opinion in September 2020. However, the examiner provided a general rationale which failed to specifically address each diagnosed disorder. Accordingly, an addendum opinion is necessary to ensure substantial compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for migraines is remanded. The Veteran was provided with a VA addendum opinion in September 2020. The examiner provided a negative nexus opinion, and noted that the separation examination in 1987 was silent for headaches. The Board notes the separation examination clearly notes a history of headaches in July 1987. The Board finds this examination inadequate, as the rationale for the opinion was based on an inaccurate factual basis. Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Accordingly, an addendum opinion is necessary to determine the nature and etiology of the Veteran's migraines. 3. Entitlement to service connection for a left ankle disability is remanded. In the August 2012 VA examination, the examiner noted left ankle arthritis. In May 2020, the Board remanded the matter for a VA addendum opinion in which the examiner was directed to provide nexus opinions for all left ankle disabilities diagnosed during the appeal period. The Veteran was provided with a negative nexus opinion in September 2020. However, the examiner only addressed the left ankle sprain, and did not address the diagnosed left ankle arthritic findings. Accordingly, an addendum opinion is necessary to ensure substantial compliance with the previous remand directives. See Stegall, 11 Vet. App. at 268. 4. Entitlement to service connection for numbness of the bilateral upper extremities, to include as secondary to a cervical spine disability is remanded. Previously, the Board instructed the AOJ to defer the extremity numbness claim until the referred claims of service connection for lumbar and cervical spine disabilities were considered. The required documents were filed by the Veteran in January 2021, and to date, the AOJ has not addressed the referred cervical spine claim. As noted above, the Board has once again referred the claim to the AOJ. See Stegall, 11 Vet. App. at 271. Therefore, the claim for service connection for bilateral upper extremity numbness is inextricably intertwined with the referred claims of service connection. The matters are REMANDED for the following action: 1. Forward the veteran's claim file to a qualified medical professional and obtain a VA addendum opinion to determine the current nature and etiology of the Veteran's right eye disability. (A new VA examination may be conducted if deemed necessary.) The complete file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should be asked to address the following: Identify all right eye disabilities demonstrated during the appeal period or in proximity to the claim, even if currently resolved; Provide an opinion as to whether any diagnosed right eye disabilities clearly and unmistakably preexisted the Veteran's active duty period beginning in 1979, and IF SO, was the disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran's military service; and IF any diagnosed right eye disability did not clearly and unmistakably preexist the active service period beginning in 1979, provide an opinion as to whether the diagnosed condition at least as likely as not (at least an approximate balance of positive and negative evidence) had its onset during or is otherwise related to any event or injury during the Veteran's two periods of active service. All opinions must be supported by a detailed rationale, which must address the Veteran's lay contentions provided in the record. Any contrary medical evidence in the record must be addressed. 2. Forward the veteran's claim file to a qualified medical professional and obtain a VA addendum opinion to determine the current nature and etiology of the Veteran's migraines. (A new VA examination may be conducted if deemed necessary.) The complete file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should be asked to address the following: Provide an opinion as to whether any diagnosed migraine disability clearly and unmistakably preexisted the Veteran's active duty period beginning in 1979, and IF SO, was the disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran's military service; and IF any diagnosed migraine disability did not clearly and unmistakably preexist the active service period beginning in 1979, provide an opinion as to whether the diagnosed condition at least as likely as not (at least an approximate balance of positive and negative evidence) had its onset during or is otherwise related to any event or injury during the Veteran's two periods of active service. All opinions must be supported by a detailed rationale, which must address the Veteran's lay contentions provided in the record. Any contrary medical evidence in the record must be addressed. 3. Forward the veteran's claim file to a qualified medical professional and obtain a VA addendum opinion to determine the current nature and etiology of the Veteran's left ankle disability. (A new VA examination may be conducted if deemed necessary.) The complete file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should be asked to address the following: Identify all left ankle disabilities demonstrated during the appeal period or in proximity to the claim, even if currently resolved; Provide an opinion as to whether any diagnosed left ankle disability clearly and unmistakably preexisted the Veteran's active duty period beginning in 1979, and IF SO, was the disability clearly and unmistakably NOT aggravated beyond its natural progression by the Veteran's military service; and IF any diagnosed left ankle disability did not clearly and unmistakably preexist the active service period beginning in 1979, provide an opinion as to whether the diagnosed condition at least as likely as not (at least an approximate balance of positive and negative evidence) had its onset during or is otherwise related to any event or injury during the Veteran's two periods of active service. All opinions must be supported by a detailed rationale, which must address the Veteran's lay contentions provided in the record. Any contrary medical evidence in the record must be addressed. 4. After adjudication of the referred service connection claim for the cervical spine, readjudicate the bilateral upper extremity numbness claims. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.