Citation Nr: A21006382 Decision Date: 03/23/21 Archive Date: 03/23/21 DOCKET NO. 200317-72096 DATE: March 23, 2021 ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for right foot disorder is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, is denied. REMANDED Entitlement to service connection for benign prostatic hypertrophy (BPH) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the probative evidence of record is against finding that the Veteran has had a left shoulder disorder at any time during or approximate to the pendency of the claim. 2. The preponderance of the probative evidence of record is against finding that the Veteran has had a skin disorder at any time during or approximate to the pendency of the claim. 3. The preponderance of the probative evidence of record is against finding that the Veteran has had a left foot disorder at any time during or approximate to the pendency of the claim. 4. The preponderance of the probative evidence of record is against finding that the Veteran has had a right foot disorder at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence is against finding that an acquired psychiatric disorder, to include depression, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for an acquired psychiatric disorder, to include depressive disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from July 1980 to August 1992. He also had National Guard service from August 1992 to January 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2019 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Veteran chose a higher-level review of this decision and, in October 2019, the RO issued a new December 2019 rating decision after the higher-level review was completed. The Veteran chose a direct review of this December 2019 rating decision, which considered only evidence submitted prior to the notification of the September 2019 rating decision. Service Connection The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 U.S.C. § 1110. 1. Entitlement to service connection for a left shoulder disorder Service connection is not warranted for this claim because there is no probative evidence that the Veteran had a left shoulder disorder during the appeal period. The Veteran reported on his July 2019 VA 21-526 EZ that he has left shoulder degenerative arthritis. He indicated on the form that his rotator cuff was torn during active duty. Other than the submission of the claim, the Veteran has not submitted any argument or medical evidence to support this claim. The Veteran has also not identified any outstanding medical records pertinent to this claim. Review of the Veteran’s service medical records do not indicate any issues with his left shoulder, to include degenerative joint disease. The Veteran sought treatment for problems with pain in the right arm but did not report any problems with the left shoulder. The Veteran completed reports of medical history in November 1977, July 1980, September 1997, and July 2002 wherein he denied having or ever having had a painful or trick shoulder. The Board finds there is no current left shoulder disorder. The Veteran has not reported he experienced any disability in the left shoulder. As there is no indication that he even suffers pain from this condition, a disability cannot be established. “Disability” for VA compensation purposes refers to impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68. However, the Federal Circuit in Saunders, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. Accordingly, the Veteran’s claim lacks the preliminary threshold of service connection, a current disability, so the claim is denied as a matter of law. The benefit of the doubt doctrine is therefore not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § § 5107(b); 38 C.F.R. § § 3.102. The Board acknowledges that the Veteran has not yet been afforded a VA examination for this claim, but as noted, prior to receipt of the Veteran’s decision review request for higher-level review, the evidence of record did not show a present diagnosis, an impairment of earning capacity for the claimed condition, or an inservice incurrence. Thus, the Board finds that evidence for the low threshold of McLendon was not received prior to end of the evidentiary period on appeal. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to service connection for a skin condition, to include pseudofolliculitis barbae, is denied. Service connection is not warranted for this claim because the preponderance of the probative evidence indicates the Veteran’s skin condition has resolved, and there is no evidence of a current disability at any time during the appeal period. The Veteran reported on his application for compensation that he has pseudofolliculitis barbae due to service and his service treatment records would prove this. Neither the Veteran or his representative have submitted argument or contentions beyond noting that the condition is in service treatment records. The Veteran has not identified any outstanding clinical records pertinent to the claim. Service medical records corroborate the Veteran’s contentions that he sought treatment for skin issues. In July 1980, he was seen for pseudofolliculitis barbae (PFB) from shaving at the dermatology clinic. In May 1986, he had small brown macules which was diagnosed as tinea versicolor. In April 1988, he had bad scalp irritation. In May and September 1987, he was seen for PFB. In June 1991, he complained of a body rash for 10 days. He had bumps on his hands and feet and numerous inflamed papules. He was assessed to have dyshydrosis. While there is evidence of complaints of, diagnosis of or treatment for skin disorders during active duty, there is no competent evidence documenting the current existence of skin disorders. There are no clinical records associated with the claims file which document the post-service existence of skin disorders. The Veteran underwent a VA examination for skin disorders in May 2019. At the examination, it was reported that while the Veteran had a diagnosis of pseudofolliculitis barbae (PFB) in the past, the condition had resolved. No skin disorders were diagnosed. While the records indicate the Veteran had issues with his skin during service, the post-service record is devoid of any probative evidence of a current skin disability. The Board finds the mere submission of the claim for a skin disorder, without elaboration as to any symptoms or disability attributed to the disorder, does not constitute evidence of a current disability. Absent additional evidence showing otherwise, the Board finds service connection is not warranted for a skin disorder as the preponderance of the probative evidence is against a finding of a current skin disability. 3. Entitlement to service connection for a left and/or right foot disorder is denied. Service connection is not warranted for this claim as the preponderance of the probative evidence demonstrate the Veteran does not have a current disability of a right or left foot disorder at any time during the appeal period. While the Veteran’s submission of a July 2019 VA 21-526 EZ gave rise to the issues on appeal, it is not clear to the Board what foot disorder, if any, the Veteran is claiming entitlement to. There is not a claim for a specific foot disorder on this form. Moreover, the Veteran generally reports that his issues are supported by his service records. Neither the Veteran or his representative have submitted argument or contentions beyond noting that the conditions on his claim form are in his service treatment records. The Veteran has not identified any outstanding clinical records pertinent to the claims. Service medical records report the Veteran was treated for glass in his left foot in July 1985 and an issue with his right foot was reported in August 1980. While there is evidence of complaints of, diagnosis of or treatment for foot disorders during active duty, there is no competent evidence documenting the current existence of foot disorders. There are no clinical records associated with the claims file which document the post-service existence of foot problems. Accordingly, while an inservice incurrence has been found, the post-service record is devoid of any evidence of a current foot disability. The Board finds the mere submission of the claims, or lack thereof, without any elaboration as to any symptoms or disability attributed to the disorders, does not constitute evidence of a current disability. Accordingly, the Veteran’s claim lacks the preliminary threshold of service connection, a disability, so the claim is denied as a matter of law. The benefit of the doubt doctrine is therefore not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § § 5107(b); 38 C.F.R. § § 3.102. The Board acknowledges that the Veteran has not yet been afforded a VA examination for this claim, but as noted, prior to receipt of the Veteran’s decision review request for higher-level review, the evidence of record did not show a present diagnosis nor did it show an impairment of earning capacity for the claimed conditions. Thus, the Board finds that evidence for the low threshold of McLendon was not received prior to end of the evidentiary period on appeal. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 4. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, is denied. Service connection is not warranted for this claim because while there is a current disability of a depressive disorder, it has not been linked to active duty or to a service connected disability. The mental disorder has been linked to the non-service connected problems with the Veteran's knees and feet. A May 2019 VA examination reports the Veteran has a current disability of depressive disorder due to chronic pain syndrome (feet/knee conditions), with anxious distress. As a preliminary matter, the Board notes that the VA examiner’s diagnosis relies on the Veteran’s reports, alone, of chronic pain associated with his knees and feet. The evidence comments on the examination do not detail any post service medical records that corroborate the contention that the Veteran experiences chronic pain associated with his feet and knees. To that extent, the Board’s above denial of service connection for the bilateral feet is not undermined by this VA examination that reports the Veteran has a diagnosis of depression due to chronic pain in his feet and knees. Notably, the Board’s denial above is based on the current evidence and development on hand at the time of the decision on appeal. As noted, these claims are being reviewed on the direct docket, so further development is not appropriate. Service medical records report the Veteran was referred to mental health for marital problems in February 1988, and the couple was seen in April 1988 at the mental health clinic. Yet the Veteran checked “no” as to whether he ever had or presently had depression or excessive worry or nervous trouble of any sort on reports of medical history from July 1992 and September 1997. Moreover, in June 2008, the Veteran circled “no” as to whether in the past few months had he been bothered by feeling down, helpless, panicky, or anxious. While there is evidence of complaints of, diagnosis of or treatment for a mental disorder during active duty, there is competent evidence that shows the issue resolved. More importantly, to the extent there is a current diagnosis, the probative medical evidence demonstrates it is not due to service but due to the Veteran’s reported pain in his knees and feet. A VA examiner in May 2019 noted that the Veteran was seen in service for marital problems with no other indication of mental health issues/diagnoses/ or treatment in service. Thus, it is less likely than not that the diagnosed depressive disorder due to chronic pain was incurred in or caused by treatment during service. Moreover, it is not supported by the records. Instead, the VA examiner reported the Veteran had a long history of bilateral knee and foot issues, per the Veteran, that have a chronic pain component. This constellation of symptoms, the examiner opined, is highly consistent with depression related to chronic pain as it relates to the Veteran’s knee/foot issues. The examiner opined that the Veteran appeared to provide a candid and reliable self-report of symptoms during this forensic exam, so therefore, based on the examination, the Veteran’s depression condition was proximately due to and the result of the Veteran’s chronic pain syndrome associated with knee and foot issues that he reported started in service. The Veteran is not service connected for chronic pain in his knee or foot. Moreover, while there were inservice reports of mental health issues associated with his marriage, the Veteran affirmatively reported that he did not have any issues with depression, anxiety, or worry in subsequent service medical examinations. Moreover, notwithstanding the May 2019 VA examination, the post service record does not contain any medical or lay statements which support the Veteran’s claim. Accordingly, the preponderance of the probative evidence is against the claim. The benefit of the doubt doctrine is therefore not for application and the claim of service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 REASONS FOR REMAND 5. The claims for service connection for BPH and hypertension are remanded. The Veteran has not undergone a VA examination for his hypertension or BPH. However, the Veteran’s reserve records report that the Veteran began treatment for hypertension in September 1996 and private correspondence from August 2004 reported that he had an abnormal prostate. Favorable findings by the RO include the Veteran was treated for prostatitis during service. Also, his service records report in November 1988, the Veteran was assessed to have borderline high blood pressure after being dizzy, shaky, and tired. As it relates specifically to the Veteran’s claims for hypertension and benign prostate, the medical record indicates he was being treated by a medical professional for these conditions. There is evidence of in-service symptoms, a current diagnosis and a link provided by the Veteran's allegations. A VA examination should have been obtained to determine the etiology of the claimed disorders. This was a pre-decisional duty to assist error. The private medical records for this treatment should have been obtained by the RO, and on remand, the RO should request these documents. This, too, was a pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain, to the extent possible, the outstanding private medical records pertaining ot treatment for BPH and hypertension. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's benign prostate hypertrophy. After examination of the Veteran, the VA examiner is asked to respond to the following inquiries: (a.) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has benign prostate hypertrophy (or any prostate disorder) that was incurred in or aggravated by military service? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the Veteran’s service medical records as they relate to this condition, including reports of prostatitis. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's hypertension. After examination of the Veteran, the VA examiner is asked to respond to the following inquiries: (a.) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has hypertension that was incurred in or aggravated by military service? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the Veteran’s service medical records as they relate to this condition, including reports of being dizzy, shaky, and tired with borderline high blood pressure in November 1988. (Continued on the next page)   If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wade 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.