Citation Nr: 21042295 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-20 305 DATE: July 12, 2021 ORDER Entitlement to service connection for an allergic rash disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for left foot disability is denied. Entitlement to service connection for a back disability, to include a herniated disc is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a current allergic rash disability, proximate to the claim, or during the appeal period. 2. The preponderance of the evidence is against finding that the Veteran has a current left knee disability that is etiologically related to his active duty service. 3. The preponderance of the evidence is against finding that the Veteran has a left foot disability, proximate to the claim, or during the appeal period. 4. The preponderance of the evidence is against finding that the Veteran has a back disability, to include a herniated disc, proximate to the claim, or during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an allergic rash disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for left foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for a back disability, to include a herniated disc have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1988 to April 1992, and Army National Guard with periods of active duty service from March 2003 to September 2004, and July 2006 to December 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his April 2016 VA Form 9 and was scheduled for a hearing in February 2020; however, VA's Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran was a "no show." To date, the Veteran, nor his representative, have provided any good cause explanation for his absence nor requested to reschedule the hearing. Therefore, the Board finds that the Veteran's hearing request is withdrawn. See 38 C.F.R. § 20.704(d). The Board notes the issues were last adjudicated by the RO in April 2016. Since that date and following the Veteran's case being certified to the Board in April 2017, additional VA treatment records have been associated with the claims file. In June 2021, the Veteran's representative waived RO review of evidence added to the file since the last April 2016 RO review. As such, the Board may proceed with adjudicating the Veteran's claims. Service Connection Service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To prevail on a direct service connection claim, there must be (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). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, or during the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for an allergic rash disability. The Veteran seeks service connection for an allergic rash disability. See February 2013 VA 21-526. The Veteran further stated he had an allergic reaction to Thivam and to see his service treatment records. Id. In regard to the first element of the Shedden analysis, the probative evidence of record does not show that the Veteran has a current allergic rash disability demonstrated proximate to the claim or during the appeal period. In that regard, the Veteran's service treatment records (STRs) indicate the Veteran was assessed and treated for a rash on both of his arms while in service. See May 1997 STRs. The Veteran's STRs state no known allergies and Thivam is not listed among his current or expired medications. See STRs received February 2016. Post-service treatment records associated with the claims file are absent any treatment, complaints, or diagnoses of a recurrent rash disability. For example, in March 2008, a screen for a skin rash indicates the Veteran reported no persistent skin rash. See March 2008 VA treatment records. Additionally, VA treatment records indicate a history of allergic reactions to leather; however, no diagnosis appears to be made for rashes or what allergic reactions occur. See May 2017 VA treatment records. For example, VA treatment records note no lesions, rashes, or open areas upon physical examination of the Veteran's skin. Id. The Board notes that the Veteran has not been afforded a VA examination. However, the Board finds that a VA examination is not warranted. The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the first element required to trigger the VA's duty to assist is not met because there is no competent evidence of any current disabilities, claimed as an allergic rash. The only evidence of record is the Veteran's own statements. However, to the extent the Veteran asserts that he has an allergic rash disability, the Board notes that he has not been shown to have the medical training necessary to diagnose such condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the RO notified the Veteran what evidence was required to support the Veteran's claim. VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran, nor his representative, have provided any competent evidence that demonstrates the Veteran has a current allergic rash disability proximate to the claim, or during the appeal period. Furthermore, as noted, the Veteran did not appear for his scheduled hearing before the Board where evidence could have been elicited to support the Veteran's claim. Therefore, a VA examination is not warranted because there is no competent evidence of a current disability. McLendon, 20 Vet. App. at 81. In sum, the Board finds that there is no competent evidence of a current disability, and there is no valid claim. Brammer, 3 Vet. App. at 225. In this case, there is an absence of proof of an allergic rash disability proximate to the claim, or during the appeal period. Without evidence of a current diagnosis of a disability, the Board need not address the other elements of service connection. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for a left knee disability. The Veteran seeks service connection for a left knee disability (no cartilage). See February 2013 VA 21-526. With respect to the first Shedden element of service connection, VA treatment records demonstrate the Veteran has chronic pain syndrome related to his bilateral knees since a total knee replacement in 2014. Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that the first element of service connection has been met. See Shedden, 381 F.3d at 1167. As to the second Shedden element, event, injury, or illness in service, the Board finds that there was not an in-service event, injury, or disease. See Shedden, 381 F.3d at 1167. In that regard, the Veteran's STRs are silent for any treatment, complaints, or diagnosis for an injury or symptoms related to his left knee. The Veteran, nor his representative, have provided any evidence or statements regarding any injury, event, or disease that occurred during service related to the Veteran's left knee. Therefore, the preponderance of the evidence is against a finding of an in-service incurrence and the second element of service connection has not been established. See Shedden, 381 F.3d at 1167. Additionally, absent any in-service findings, direct service connection on a presumptive basis is also precluded. See 38 U.S.C. § 1101; 38 C.F.R. §§ 3.303, 3.309(a). The Board notes that the Veteran has not been afforded a VA examination. However, the Board finds that a VA examination is not warranted. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81. In this case, the second and third elements required to trigger the VA's duty to assist is not met because there is no evidence of an in-service injury, event, or illness related to the Veteran's left knee and there is no indication the Veteran's current left knee pain is related to his service. The only evidence of record is the Veteran's own statements. However, to the extent the Veteran asserts that he has a left knee disability related to his service, the Board notes that he has not been shown to have the medical training necessary to be deemed competent to provide an opinion as to the etiology of his left knee pain. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. Additionally, the Veteran's VA treatment records indicate the Veteran's left knee pain is associated with a total knee replacement in 2014 and that his construction work aggravates his symptoms. See May 2017 VA treatment records. There is no indication in post-service treatment records that demonstrate the Veteran's total knee replacement is related to an in-service injury, event, or disease. Moreover, the RO notified the Veteran what evidence was required to support the Veteran's claim. VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood, 1 Vet. App. at 193. The Veteran, nor his representative, have provided any evidence that demonstrates the Veteran has a current left knee disability related to an in-service, injury, event, or disease. Furthermore, as noted, the Veteran did not appear for his scheduled hearing before the Board where evidence could have been elicited to support the Veteran's claim. Therefore, a VA examination is not warranted because there is no evidence of an in-service injury, event, or disease and no evidence that relates his current left knee disability to his military service. McLendon, 20 Vet. App. at 81. For these reasons, the Board finds the preponderance of the evidence is against the claim for service connection for a left knee disability, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. Entitlement to service connection for left foot disability. The Veteran seeks service connection for a left foot disability. See February 2013 VA 21-526. In regard to the first element of the Shedden analysis, the probative evidence of record does not show that the Veteran has a current left foot disability demonstrated proximate to the claim or during the appeal period. In that regard, the Veteran stated that he had surgery on his foot while in service. See July 2014 Notice of Disagreement. The Veteran's STRs indicate the Veteran confirms the Veteran had surgery to extract two bone fragments from his left foot. See August 1993 STRs. In October 2003, the Veteran reported left ankle pain; however, X-rays revealed a normal examination of the Veteran's left ankle. See October 2003 STRs. However, post-service treatment records associated with the claims file are absent any treatment, complaints, or diagnoses of a left foot disability. For example, a May 2017 physical examination does not indicate a left foot disability. See May 2017 VA treatment records. The Board notes that the Veteran has not been afforded a VA examination. However, the Board finds that a VA examination is not warranted. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81. In this case, the first element required to trigger the VA's duty to assist is not met because there is no competent evidence of any current disabilities, claimed as a left foot disability. The only evidence of record is the Veteran's own statements. However, to the extent the Veteran asserts that he has a left foot disability, the Board notes that he has not been shown to have the medical training necessary to diagnose such condition. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. Moreover, the RO notified the Veteran what evidence was required to support the Veteran's claim. VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood, 1 Vet. App. at 193. The Veteran, nor his representative, have provided any competent evidence that demonstrates the Veteran has a current left foot disability proximate to the claim, or during the appeal period. Furthermore, as noted, the Veteran did not appear for his scheduled hearing before the Board where evidence could have been elicited to support the Veteran's claim. Therefore, a VA examination is not warranted because there is no competent evidence of a current disability. McLendon, 20 Vet. App. at 81. In sum, the Board finds that there is no competent evidence of a current disability, and there is no valid claim. Brammer, 3 Vet. App. at 225. In this case, there is an absence of proof of a left foot disability proximate to the claim, or during the appeal period. Without evidence of a current diagnosis of a disability, the Board need not address the other elements of service connection. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. Entitlement to service connection for a back disability, to include a herniated disc. The Veteran seeks service connection for a back disability, claimed as a herniated disc in his back. See February 2013 VA 21-526. In regard to the first element of the Shedden analysis, the probative evidence of record does not show that the Veteran has a current back disability demonstrated proximate to the claim or during the appeal period. In that regard, the Veteran's STRs document the Veteran's complaint of back pain for a week with no reported injury and assessment for a backache. See July 2007 STRs. However, post-service treatment records associated with the claims file are absent any treatment, complaints, or diagnoses of a back disability. For example, a May 2017 physical examination does not indicate a back disability. See May 2017 VA treatment records. The Board notes that the Veteran has not been afforded a VA examination. However, the Board finds that a VA examination is not warranted. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81. In this case, the first element required to trigger the VA's duty to assist is not met because there is no competent evidence of any current disabilities, claimed as a herniated disc in the back or any other back disability. The only evidence of record is the Veteran's own statements. However, to the extent the Veteran asserts that he has a back disability, the Board notes that he has not been shown to have the medical training necessary to diagnose such condition. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. Moreover, the RO notified the Veteran what evidence was required to support the Veteran's claim. VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood, 1 Vet. App. at 193. The Veteran, nor his representative, have provided any competent evidence that demonstrates the Veteran has a current back disability proximate to the claim, or during the appeal period. Furthermore, as noted, the Veteran did not appear for his scheduled hearing before the Board where evidence could have been elicited to support the Veteran's claim. Therefore, a VA examination is not warranted because there is no competent evidence of a current disability. McLendon, 20 Vet. App. at 81. In sum, the Board finds that there is no competent evidence of a current disability, and there is no valid claim. Brammer, 3 Vet. App. at 225. In this case, there is an absence of proof of a back disability proximate to the claim, or during the appeal period. Without evidence of a current diagnosis of a disability, the Board need not address the other elements of service connection. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. See February 2013 VA Form 21-526. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because the Veteran has not yet been afforded a VA examination in relation to his claim. In this case, the Board finds that the low threshold for provision of a VA examination described in McLendon has been met. In that regard, the Veteran's STRs demonstrate the Veteran was assessed and treated for hypertension during his active duty military service. See December 2003, February 2004, and June 2004 STRs. VA treatment records indicate the Veteran has a history of hypertension and a current assessment for hypertension. See May 2017 VA treatment records. VA treatment records also noted the Veteran will continue on his current medication for hypertension. Id. However, there is no evidence of hypertension in the Veteran's VA treatment records until the May 2017 VA treatment records. Given these circumstances, remand is necessary for a VA examination to determine the nature and etiology of the Veteran's diagnosed hypertension. See McLendon, 20 Vet. App. at 83-86. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's hypertension. The record and a copy of this REMAND must be made available to and reviewed by the examiner. The examiner is asked for the following: (a.) Clarify whether the Veteran has a current diagnosis for hypertension. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran has hypertension that had its onset during service or is otherwise etiologically related to an in-service event, injury, or disease. A complete rationale must be given for all opinions and conclusions expressed. The examiner must consider the Veteran's December 2003, February 2004, and June 2004 STRs; and May 2017 VA treatment records that indicate the Veteran has a history of hypertension. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.