Citation Nr: 22012671 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-63 520 DATE: March 4, 2022 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a sciatic nerve disorder, to include on a secondary basis, is denied. Entitlement to service connection for a right-hand disability is denied. Entitlement to service connection for a hiatal hernia disability is denied. FINDINGS OF FACT 1. The Veteran does not have a back disability. 2. . The Veteran does not have a sciatic nerve disorder. 3. The Veteran does not have a right hand disability. 4. The Veteran does not have a hiatal hernia disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a sciatic nerve disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a hiatal hernia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2002 to October 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran appeared at Board hearing before the undersigned. Although the Veteran's representative was not present during this hearing, the Veteran agreed to continue with the proceeding. The transcript is of record. The Board previously remanded these issues in July 2021 for further development. Specifically, the Board indicated that VA examinations were necessary to determine if the Veteran has a current back disability, nerve disorder, right hand disability, and hiatal hernia or related disorder manifested by an intermittent bulge in the chest, and if so, to address the etiology of each disorder. The requested examinations and opinions were obtained in September 2021, and the RO issued a Supplemental Statement of the Case (SSOC) in October 2021. The Board finds that there has been substantial compliance with the July 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a back disability is denied. 2. Entitlement to service connection for a sciatic nerve disorder, to include on a secondary basis, is denied. The Veteran contends that he has a back disability and sciatic nerve disorder that are related to active service. The Veteran also asserts that the sciatic nerve disorder is related to his back disability. Specifically, he asserts that his involvement in a roadside bomb attack and his work as a mechanic during service were major factors contributing to his back problems. He indicates that he had a back strain and pinched nerve during service in July 2007 and has continued to experience extreme pain in his back and sciatic pain when driving. A July 2007 service treatment record (STR) notes pain in the thoracic spine, severe upper back pain, and a pinched nerve, lasting approximately one week; the record notes that the Veteran was a mechanic, and he may have injured his back. A June 2009 post-deployment assessment, completed just before service separation, notes a complaint of back pain, without a diagnosis or referral for treatment. At his Board hearing, the Veteran testified that he began experiencing back and nerve pain during active service and that he has continued to experience symptoms since service, which he described as back pain with shooting pain and/or numbness in his extremities. The Veteran was afforded VA examinations in September 2021 for his claimed back and nerve disorder. Physical examination revealed normal range of motion in the Veteran's back, although the Veteran reported difficulty lifting due to his back pain, and no symptoms attributable to a peripheral nerve disorder were noted on examination. The examinations indicate that the Veteran reported that, in 2006 while in Afghanistan, he was lifting heavy equipment and "pulled his back". He notes sporadic pain since then. He indicated that he had never been seen for treatment for his back pain. The examiner indicated that the Veteran reported experiencing pain every two to three weeks, which he treated with Motrin. The examiner indicated that there were no limitations due to his lumbar spine pain noted. The Veteran reported daily bilateral sciatic nerve pain when sitting in the car, which began a few years ago. The Veteran reported having a T10 compression fracture treated with physical therapy two years ago, but he did not have a current lumbar spine condition. After a review of the Veteran's STRs, an in-person examination, and consideration of the Veteran's symptoms, the examiner indicated that the Veteran did not have a back disability or nerve disorder. After a review of the evidence, the Board notes that there is no medical evidence indicating that the Veteran has a current back disability or sciatic nerve disability. The only indication throughout the record that the Veteran has a current back or nerve disorder is the Veteran's own claim of the disorders. The Board notes that the Veteran is competent to report that which he has personally experienced. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that such assertions purport to establish a current disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the Board affords the Veteran's assertion that he has a current back disability and nerve disorder no probative weight. The Board is cognizant of Saunders v. Wilkie, in which the Federal Circuit held that that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). However, the Federal Circuit also made clear that a veteran cannot demonstrate service connection simply by asserting subjective pain to establish a disability; the Veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran must show that the pain reaches the level of a functional impairment of earning capacity. Id. at 1367-68. Here, to the extent that the Veteran complains that he has pain and difficulty lifting, there is no indication that any subjective complaints result in functional impairment of earning capacity, and the VA examiner specifically noted that there were no limitations due to his lumbar spine pain or symptoms attributable to a peripheral nerve disorder. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current disability associated with his claimed back and sciatic nerve pain and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of the claim. As the evidence of record does not demonstrate that the Veteran does in fact have the claimed disabilities, the first element of service connection has not been met for the claim on appeal, and no further analysis is necessary. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the foregoing, the Board finds that the evidence is persuasively against a grant of service connection for a back and sciatic nerve disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claims, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). As there is no indication in the record of a current sciatic nerve disorder, no discussion of whether service connection is warranted on a separate theory is necessary, to include a discussion of whether a sciatic nerve disorder is secondary to his back disorder. 3. Entitlement to service connection for a right-hand disability is denied. The Veteran contends that he has a right hand disorder due to an injury incurred in service. Specifically, he contends that he crushed his hand during service, was diagnosed with boxer's hand during service, and has continued to experience right hand pain since service. An April 2007 record notes that the Veteran received treatment for a right-hand injury resulting in swelling, bruising, a small laceration, and tenderness at the fourth and fifth metacarpal. The record notes that the Veteran injured his right hand when he fell onto a metal bolt. Testing revealed mild dorsal soft tissue swelling over the metacarpals. Mineralization was normal. There was mild deformity with apex dorsal angulation of the distal metadiaphysis of the right 5th metacarpal, but there was no visible fracture line, suggesting that this was an old, healed boxer's fracture. An acute nondisplaced boxer's fracture is also in the differential. No other fractures were seen, and no degenerative changes were seen. The impression notes a "probable" old right 5th metacarpal fracture (boxer's fracture) and soft tissue swelling over the dorsum of the hand. Subsequent STRs are silent for any further complaints, treatment, or diagnosis related to his right hand. In his May 2015 notice of disagreement, the Veteran reported experiencing pain, discomfort, and limited range of motion of the right hand. At his Board hearing, the Veteran testified that he has continued to experience right hand pain since service. The Veteran was afforded a VA examination in September 2021. The examiner noted that the Veteran reported injuring his hand in 2007; he was seen by the medic and treated with Motrin. The Veteran reported a constant right hand ache "that locks up", which made work "tricky". Physical examination of the Veteran's right hand revealed normal range of motion, and the examiner indicated that the Veteran did not have a right hand disability. After a review of the evidence, the Board notes that the only indication throughout the record that the Veteran has had a right hand disability at any time during the appeal period is the Veteran's own claim of the disorder. The Board notes that the Veteran is competent to report that which he has personally experienced. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that such assertions purport to establish a current disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the Board affords the Veteran's assertion that he has a current right hand disability no probative weight. The Board is cognizant of Saunders v. Wilkie, in which the Federal Circuit held that that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). However, the Federal Circuit also made clear that a veteran cannot demonstrate service connection simply by asserting subjective pain to establish a disability; the Veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran must show that the pain reaches the level of a functional impairment of earning capacity. Id. at 1367-68. In this regard, the Board has considered the Veteran's contention that he experienced limited range of motion or locking due to his right hand pain. While the Veteran is competent to report his symptoms of pain, to the extent that the Veteran asserts that he experiences functional impairment due to this pain, the Board finds that his reported symptoms regarding functional impairment are outweighed by the remaining evidence of record. Specifically, during his September 2021 VA examination, clinical testing revealed that the Veteran had normal range of motion in his right hand, including with repetitive use testing, and the examiner considered the Veteran's reported symptoms and nevertheless found that he did not have right hand disability. Therefore, the Board finds that the weight of the probative evidence does not establish that any subjective complaints result in functional impairment of earning capacity. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current disability associated with his claimed right hand pain and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of the claim. As the evidence of record does not demonstrate that the Veteran does in fact have the claimed disability, the first element of service connection has not been met for the claim on appeal, and no further analysis is necessary. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the foregoing, the Board finds that the evidence is persuasively against a grant of service connection for a right hand disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claims, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). 4. Entitlement to service connection for a hiatal hernia disability is denied. The Veteran contends that he has a hernia disability manifested by a recurring bulge on his rib line, which causes him extreme pain. An April 2005 STR notes that the Veteran reported having an intermittent, non-reproducible bulge for the last two years on the left rib line, which was painful; the assessment notes possible hernia, which could not be reproduced or tested. Subsequent STRs are silent for any complaints, treatment, or diagnosis related to a hernia disability or related symptoms. At his Board hearing, the Veteran testified that he had an intermittent bulge that presents in his chest when laying in certain positions which has recurred since service. The Veteran was afforded a VA examination in September 2021. The examination notes that the Veteran reported that, in 2005, he had an intermittent non-reproducible bulge in his left chest below ribs 4 and 5 that may have been present for 2 years. The examiner noted that physical examination of the Veteran did not reveal any hernia abdominal or hiatal; therefore, the examiner found that the Veteran did not have a hiatal hernia or other hernia disorder. After a review of the evidence, the Board notes that the only indication throughout the record that the Veteran has a hernia disorder is in the Veteran's own claim of the disorder. The Board notes that the Veteran is competent to report that which he has personally experienced. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, although he is competent to report his symptoms, to the extent that such assertions purport to establish a current disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the Board affords the Veteran's assertion that he has a current hernia disability no probative weight. The Board is cognizant of Saunders v. Wilkie, in which the Federal Circuit held that that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). However, the Federal Circuit also made clear that a veteran cannot demonstrate service connection simply by asserting subjective pain to establish a disability; the Veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran must show that the pain reaches the level of a functional impairment of earning capacity. Id. at 1367-68. Here, to the extent that the Veteran complains that he has pain associated with a recurring bulge in his chest, there is no indication that any subjective complaints result in functional impairment of earning capacity. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current disability associated with his claimed intermittent bulge in the chest area and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of the claim. As the evidence of record does not demonstrate that the Veteran does in fact have a current disability manifested by a bulge in the chest area, the first element of service connection has not been met for the claim on appeal, and no further analysis is necessary. Accordingly, the Board finds that the preponderance of the competent and credible evidence is against finding that the Veteran has a hernia disability. As there is no disability that can be related to active service, the Veteran's claim for service connection must be denied. 38 U.S.C. § 1110; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). (Continued on the next page) Based on the foregoing, the Board finds that the evidence is persuasively against a grant of service connection for a hiatal hernia disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claims, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.