Citation Nr: 22016193 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-49 085 DATE: March 21, 2022 ORDER Entitlement to service connection for a right ankle disorder is denied. REMANDED Entitlement to service connection for a bilateral elbow disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a right ankle disability, and the record does not contain a recent diagnosis of disability prior to his filing of a claim. CONCLUSION OF LAW The criteria for service connection for a right ankle disorder have not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2004 to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript is of record. In November 2021, the Board remanded the case for additional development and it now returns for appellate review. The Board notes that, following the issuance of the November 2021 supplemental statement of the case, additional evidence has been associated with the record. However, on remand, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review the additional evidence. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. Additionally, pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right ankle disorder The Veteran contends that he has a right ankle disorder as a result his military service. In this regard, he stated that, while on active duty he began to experience a gradual onset of right ankle pain. However, after a review of the record, the Board finds that the Veteran does not have a diagnosis of such disorder prior to or during the pendency of the appeal. Therefore, service connection is not warranted. In the instant case, the probative evidence of record fails to demonstrate a current disability of the right ankle at any point during the pendency of the claim. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of such disorder prior to the Veteran's filing of a claim. It is also noted that the Veteran has not identified or submitted any treatment records reflecting a diagnosis of a right ankle disorder subject to service connection at any point during the pendency of the claim. The Veteran was afforded a VA examination in November 2021. At such time, the examiner noted the Veteran's current symptoms of intermittent aching and numbing pain to the right ankle. However, examination findings were normal, including range of motion, strength testing, and instability. The examiner opined that it was less likely than not that the Veteran's right ankle disorder was incurred in or caused by his military service. As rationale, the examiner explained that no chronic diagnosis was made for his right ankle and objective examination was normal. His symptoms were subjective only. In addition, the Veteran's treatment records do not reveal any complaints or treatment for a right ankle disorder. The Board has also considered the Veteran's assertions that he currently has a right ankle disorder. As a layperson, he is certainly competent to report matters within his personal knowledge, such as the occurrence of an injury or event, or his own symptoms. However, he is not competent to diagnose a right ankle disorder as such requires medical training and testing. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In the instant case, there is no indication that the Veteran is competent to address the nature or etiologies of his alleged right ankle disorder as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or opinion as to medical causation. Accordingly, the Veteran's assertions in this regard are afforded no probative weight. As noted, probative VA examination and medical reports do not show disability. The Board finds that service connection for a right ankle disorder cannot be established as the Veteran does not have a current diagnosis of such disorder during the pendency of his claim. Furthermore, the record does not contain a recent diagnosis of such disorder prior to his filing of a claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. For the foregoing reasons, the Board finds that service connection for a right ankle disorder must be denied. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a bilateral elbow disorder 3. Entitlement to service connection for a left shoulder disorder In accordance with the November 2021 Board remand, the Veteran underwent VA examinations for his left shoulder and elbow claims later in November 2021. At such time, the examiner concluded that it was less likely than not that such disorders were incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran's service treatment records were silent in regard to evaluations of or treatment for the disorders during his military service. Therefore, the examiner found that, without evidence of a condition during military service, it was not possible to make a plausible relationship of the current diagnoses as conditions which were incurred in or caused by military service. However, it does not appear that the VA examiner considered the Veteran's contentions, including reports of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). In this regard, the Veteran reported that his left shoulder disorder is due to a fall while performing martial arts training and other combat training. He also stated that his elbow disorder is due to extended low crawl maneuvers while performing combat training and during deployments. Moreover, he submitted a buddy statement from his former supervisor. Consequently, the Board finds that addendum opinions are necessary to decide the claims. The matters are REMANDED for the following action: 1. Return the record to an appropriate VA examiner in order to provide opinions for the Veteran's bilateral elbow and left shoulder disorder. The claims file and this Remand should be reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) Is it at least as likely as not (50 percent or more) that the Veteran's bilateral elbow disorder is related to active-duty service? (B) Is it at least as likely as not (50 percent or more) that the Veteran's left shoulder disorder is related to active-duty service? In rendering an opinion, the examiner should address the Veteran's contentions that his left shoulder disorder is due to a fall while performing martial arts training and other combat training. The Veteran also contends that his bilateral elbow disorder is due to extended low crawl maneuvers while performing combat training and during deployments. The examiner should also consider the buddy statements from the Veteran's former supervisor and sister, and the April 2009 medical entry noting right elbow pain. A complete rationale must be provided for all opinions expressed. (Continued on the next page) The examiner is further advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to any treatment or diagnosis of such disabilities. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.