Citation Nr: 22017528 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-27 761 DATE: March 25, 2022 ORDER Entitlement to service connection for ocular migraines is denied. Entitlement to service connection for osteoarthritis, lumbar spine is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of ocular migraines. 2. The evidence does not establish that the Veteran has osteoarthritis of the lumbar spine that is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ocular migraines have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for osteoarthritis, lumbar spine have not been 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 in the Navy from June 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his September 2019 VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran requested a hearing at a local VA office before a Veterans Law Judge. in January 2022, the Veteran submitted a written statement via his representative withdrawing his request for a hearing. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether a condition is listed as chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim. 1. Entitlement to service connection for ocular migraines The Veteran is seeking service connection for an ocular migraine disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Because there is no current disability of ocular migraines, service connection cannot be granted. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 ; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). First, the Veteran's available service treatment records do not mention any symptoms of ocular migraines. In fact, the Veterans June 1966 separation examination was normal. A review of the Veterans post-service treatment records show that they are negative for treatment or diagnosis of a migraine disability. Additionally, the Veteran's treatment records dated June 2017 through January 2021, show that he consistently denied having headaches. Thus, continuity of symptomatology is not shown from the time of service, or at any time during the appeal period. In this case, the evidence of record does not show that Veteran currently suffers from an ocular migraine disability. Further, because the record does not contain any indication that the Veteran might have an ocular migraine disability, a remand for an examination for such a claimed disorder is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Diagnosis or symptoms of a current disability is the threshold requirement for both direct and secondary service connection. See Sheldon v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Here, there is no diagnosable current ocular migraine disability. Without a current disability, there can be no service connection. Therefore, service connection for ocular migraines denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to service connection for osteoarthritis, lumbar spine The Veteran seeks entitlement to service connection for a lumbar spine condition. Specifically, he asserts that his pain started in service when he was playing basketball and fell down to the ground. The Veteran's service treatment records are silent for complaints of, diagnosis of, or treatment for a lumbar spine condition. In fact, the Veterans June 1966 separation examination was normal and he did not report any spine or low back issues at that time. The Veterans post-service treatment records do not reflect complaints of a lumbar spine condition until 2017. The Board notes that the Veteran's diagnosis was approximately 51 years after he left active service. Therefore, continuity of symptomatology is not shown by the evidence of record. The Board has considered the statements made by the Veteran regarding the onset and continuity of his lumbar spine condition. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of a disorder of the lumbar spine. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Board notes that Veteran's current lumbar spine condition was not diagnosed until approximately 51 years after he left active service. Therefore, continuity is not established based on the clinical evidence. Moreover, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is insufficient to warrant service connection on the Veteran's statements alone. In addition to the fact that no medical records exist showing that he sought treatment for his lumbar spine until many years after discharge, he has not provided any medical or lay evidence corroborating his assertion that he has suffered from a lumbar spine condition for the years prior to his decision to file for service connection. This, in conjunction with his failure to mention symptoms at separation and the overall lack of treatment for many years after service belies his assertions of continuous symptoms. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, malingering, or lay statements made during medical treatment). Regardless of the date of onset of a disability, service connection may be granted when the evidence establishes a medical nexus between his claimed condition and his active duty. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed condition to active duty, despite his contentions to the contrary. In this case, the evidence of record fails to indicate that the Veteran's lumbar spine condition is related to his active duty service, nor has any treating physician opined that such a relationship exists. Moreover, the Veteran has not submitted any evidence, including private examinations or medical opinions, to support his claim for service connection. The Board notes that the Veteran has not been provided with VA examinations for his lumbar spine condition. However, given the lack of chronic manifestations of the Veteran's lumbar spine during service, and no evidence of this condition until many years later, VA's duty to assist does not require it to provide an examination in connection with this matter. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the available records and medical evidence is sufficient to make an adequate determination as to the claim. In adjudicating this claim, the Board has specifically considered the statements made by the Veteran relating his claimed condition to service. The Veteran has stated that his current lumbar spine condition is due to an injury sustained while playing basketball in service. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to the etiology of his lumbar spine condition is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4. For the foregoing reasons, the Board finds that the weight of the competent evidence does not reflect a nexus between the Veteran's lumbar spine condition and his military service. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a lumbar spine condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for diabetes mellitus, type II claimed as due to military environmental exposure is remanded. The Veteran's July 2018 notice of disagreement included, among other issues, the issue of service connection of diabetes mellitus, type II. In July 2019 the RO issued a statement of the case which addressed the two issues addressed above, as well as service connection of a psychiatric disorder (later granted in full), it did not include the issue of service connection of diabetes mellitus, although it did indicate that it would continue to be developed under the holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), as outlined in VBA letter 20-19-2015. A review of the record does not indicate that that claim has been granted, nor that any additional development or consideration has taken place since the time of the original denial. As the Veteran filed a notice of disagreement with regard to that issue, but a statement of the case has not been issued which readjudicates that claim beyond mere mention of further development to come, the Board must remand this issue so that the claim may be further developed and a statement of the case may be issued. Manlincon v. West, 12 Vet. App. 238, 240 (1999). The matters are REMANDED for the following action: The RO should readjudicate the issue of entitlement to service connection of diabetes mellitus, type II, and if the claim is not granted in full, issue a statement of the case and allow the Veteran adequate time to appeal any findings therein. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.