Citation Nr: 22018458 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-35 187 DATE: March 29, 2022 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) claimed as memory loss from possible concussion is remanded. Entitlement to service connection for a low back disability claimed as a sacroiliac joint condition is remanded. Entitlement to an acquired psychiatric disability to include bipolar disorder, anxiety disorder, and posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran does not currently have or has had a left shoulder disability at any time during or approximate to the pendency of the claim. 2. The Veteran does not currently have or has had a right shoulder disability at any time during or approximate to the pendency of the claim. 3. The Veteran does not currently have or has had a left knee disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been satisfied. 38 U.S.C. § 1110., 1112, 1116, 5107; 38C.F.R. 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. § 1110., 1112, 1116, 5107; 38C.F.R. 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. § 1110., 1112, 1116, 5107; 38C.F.R. 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has service eligible for VA benefits from April 7, 2003, to November 28, 2007, and additional noneligible service from November 29, 2007, to January 15, 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision dated in January 2017 by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In an April 2018 statement, the Veteran appears to raise the issues of service connection for irritable bowel syndrome and to reopen denied service connection claims for erectile dysfunction and hearing loss. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. As discussed below, the Board is remanding the Veteran's acquired psychiatric disability and TBI claims in part to obtain additional medical records, both from service and for post service private treatment records. The Board finds that no prejudice to the Veteran proceeding to an adjudication without these records for review for the issues of service connection for the right shoulder disability, service connection for the left shoulder disability, and service connection for the left knee. First, as to the service treatment records, as discussed below, the Board's analysis turns upon whether the Veteran has a current disability that may be service connected regardless of whether the Veteran had an event, injury, or disease in service which caused either shoulder or knee symptoms or treatment. Second, the Veteran identified the private medical treatment solely for an acquired psychiatric disability and not for the shoulders or the left knee. No other evidence in the file indicates the identified treatment providers or any other medical provider has treated the shoulders disabilities or the left knee disability. Therefore, there is no basis to conclude obtaining the records would help the Veteran substantiate his claim for the service connection claims for the right shoulder, the left shoulder, and the left knee. Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). See also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Service Connection 1. Service connection for a left shoulder disability 2. Service connection for a right shoulder disability The Board has grouped these two issues together as the Board has determined that the two disabilities require a similar analysis of the same facts involving similar body joints. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran seeks entitlement to service connection for a shoulder disability in each shoulder from the physical training, martial arts, exercising, hiking, and marching with gear. There is, however, a preliminary issue that must be addressed. Since service, the medical treatment records from the VA medical center (VAMC), the only medical treatment of record, do not show any complaints, treatment, findings, or diagnosis of either the right shoulder or the left shoulder. In a July 2016 VA examination, the Veteran did not report any current complaints about his shoulders such as pain. Bilaterally, the Veteran had normal range of motion without pain. The VA examiner also found no indication of shoulder instability or rotator cuff problems. Further, the Veteran did not have any left or right shoulder functional loss or functional impairment. No symptoms caused significant limitation of function with repeated use over time. Based upon the foregoing, the VA examiner determined the Veteran did not have a left shoulder or right shoulder disability or diagnosis. The Veteran testified that he does not notice shoulder symptoms often. When his back symptoms are not as severe, he will notice shoulder symptoms with lifting or carrying. The evidence does not demonstrate that at any time during the pendency of the claims that the Veteran has a current right shoulder disability or left shoulder disability. The Court has held that "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. Brown, 3 Vet. App. 223, 225 (1992) Although the Veteran testified to problems with his shoulders starting in service, treatment records since service do not establish any complaints, diagnosis, clinical findings, or treatment of a shoulder disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). The evidence is against a finding of a shoulder disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As there is no competent evidence of a current shoulder disability, there can be no valid claim for service connection. Brammer, 3 Vet. App. at 225. After a review of the file, the Board also finds that there is no functional impairment due to left or right shoulder symptoms. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (Federal Circuit holding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity"). To the extent the Veteran is asserting he has a current shoulder disability that resulted from service, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide an opinion as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The only evidence is the VAMC medical records and the findings of the VA examiner after interview and examination of the Veteran. In sum, the law and the evidence demonstrate that the Veteran is not entitled to service connection for either a left shoulder disability or a right shoulder disability 3. Service connection for a left knee disability The Veteran seeks entitlement to service connection for a left knee disability from an injury occurring in combat training when he jumped over a creek and pulled a ligament in his right leg but believes he then injured the left knee by favoring the right leg. The December 2011 separation examination noted left patellofemoral syndrome not requiring treatment. Since service, however, the medical treatment records from the VAMC do not show any complaints, treatment, findings, or diagnosis of a left knee disability. In a July 2016 VA examination, the Veteran reported that his left knee occasionally hurts. The Veteran had normal range of motion without pain. The VA examiner also found no indication of left knee instability. Further, the Veteran did not have any left knee functional loss or functional impairment. No symptoms caused significant limitation of function with repeated use over time. Based upon the foregoing, the VA examiner determined the Veteran did not have a left knee disability or diagnosis. The Veteran testified that he does not notice left knee symptoms often. When his back symptoms are not as severe, he will notice left knee symptoms. Once again, like the shoulders, the Board finds that the Veteran does not have a left knee disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As there is no competent evidence of a current left knee disability, there can be no valid claim for service connection. Brammer, 3 Vet. App. at 225. After a review of the file, the Board also finds that there is no functional impairment due to left knee symptoms. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (Federal Circuit holding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity"). To the extent the Veteran is asserting he has a current left knee disability that resulted from service, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide an opinion as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The only evidence is the medical records and the findings of the VA examiner after interview and examination of the Veteran. In sum, the law and the evidence demonstrate that the Veteran is not entitled to service connection for a left knee disability. REASONS FOR REMAND 1. Service connection for a TBI claimed as memory loss from possible concussion. Initially, the Board notes that the Veteran's file contains a copy of his entrance examination and service treatment records from August 2007, which is approximately two to two and a half months before the April 2003- November 28, 2007, service period ended. As noted above, that is the only period of service eligible for VA benefits. The Veteran testified that while stationed in Hawaii in 2011, he learned that his service providers did not have or know where the hard (paper) copies of his service treatment records were located. In a claim for disability compensation, VA will make efforts to obtain a claimant's service treatment records, if relevant to the claim. 38 C.F.R. § 3.159 (c)(3). This includes making as many requests as are necessary and ending only when such a search would become "futile." 38 C.F.R. § 3.159. The Veteran testified he learned about the missing records at the battalion aid station at the United States Marine Corps base in Hawaii. The Board has determined that upon remand, a second request for service treatment records should be obtained including requests to the battalion aid station at the Marine base in Hawaii and the appropriate facility at any other Marine base where the Veteran was stationed. Ongoing medical records should also be obtained. The Veteran testified he had head injuries that occurred during the April 7, 2003 - November 28, 2007, period. These injuries occurred during physical training or martial arts training. Once he blacked out and on other occasions, he had blurry vision. He believes he has suffered from post- concussion syndrome similar to NFL players. In an April 2018 statement, the Veteran recalled a head injury from a pugil stick during basic training. The December 2011 separation examination noted headaches, but a TBI assessment was negative for both symptoms and/or an event causing TBI. In August 2016, while being evaluated at VAMC for TBI, the Veteran reported falling backwards off a ladder onto his head while in service. The reports did not indicate when in service this event occurred. He also reported a softball hit him in the head in 2009 which occurred in the noneligible period of service. He has been diagnosed with and treated for residuals from a TBI Based upon the foregoing, the Veteran has raised the possibility that he has a current TBI disability which had its onset or resulted from the eligible period of service from April 7, 2003, to November 28, 2007. Therefore, the Board has determined the Veteran should receive a VA examination to determine if there is a connection between the Veteran's current TBI disability and his April 7, 2003- November 28, 2007, service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). 2. Service connection for a low back disability claimed as a sacroiliac joint condition. The available treatment records show the Veteran received back treatment in January 2008, February 2008, and April 2009, all of which occurred in the service period ineligible for VA benefits. In an April 2018 statement, the Veteran recalled injuring his back during martial arts training in November 2006 and again in 2009. He testified that he injured his back while trying to perform a hanging sit up in physical training. A December 2016 VA examination diagnosed lumbosacral strain and sacroiliac injury. While the Veteran received a VA examination in December 2016, the VA examiner relied upon the lack of documentation from either service treatment records or the records following separation. The absence of a disability in service treatment records alone does not preclude service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). Further, upon remand, the Veteran's service treatment records before August 2006 might be located. Under the circumstances, the Board has determined the Veteran should receive a new VA examination. 3. Service connection for an acquired psychiatric disability to include bipolar disorder, anxiety disorder, and PTSD. Because the evidence indicates that the Veteran may have different conditions or diagnoses for ¬¬¬his claims, the Board is expanding the scope of the claim to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Treatment records reveal psychiatric diagnoses of adjustment disorder with mixed anxiety and depressed mood, anxiety disorder, bipolar disorder (sometimes listed as anxiety disorder unspecified). The Veteran has also reported depression symptoms. The Veteran testified he received mental health treatment in South Carolina shortly after separation. He believes it was the Aikens Regional Medical Center. In addition, VAMC records show prior mental health treatment at "PC-MHI" and "MHC." The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Upon remand, the Veteran should be afforded the opportunity to provide these records in support of his claim for service connection for an acquired psychiatric disability. The Veteran believes his current mental health symptoms resulted from leading a sheltered life before service to entering the Marines where different behavior was considered normal and then reintegrating himself to civilian lief after separation with difficulty figuring out what behavior was now appropriate. He had no mental health problems before service. In addition, the Veteran testified that his mental health started deteriorating while in service with symptoms of anxiety and hypervigilance. The Veteran has not received a VA mental health examination to determine his current mental health disability or disabilities and whether any such disability is related to the April 7, 2003, to November 28, 2007, service period. Accordingly, the Board has determined a remand is required to provide the Veteran with a VA examination. McLendon, supra. The matters are REMANDED for the following action: 1. Request from the proper Federal Custodians United States Marine Corps records at the battalion aid station at the Marine base in Hawaii, and any other battalion aid station or hospital where the Veteran was stationed, the National Personnel Records Center, the Veteran's service department, and any other appropriate source to include the National Archives and Records Administration, all outpatient treatment notes, hospital, or in- patient records of the Veteran. The RO is specifically directed to request not only electronic notes, but to contact the appropriate custodian to ascertain whether there are paper records that relate to the Veteran. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing and associated with the file. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to submit or authorize VA to obtain the medical records of the mental health facility in South Carolina, possibly the Aikens Regional Medical Center; and "PC-MHI" and "MHC." All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran he may submit any such records in his possession. 3. Ask the Veteran to identify all outstanding treatment records relevant to his TBI, acquired psychiatric disability, and low back claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) the Veteran has a traumatic brain injury with its onset from April 7, 2003, to November 28, 2008, or is otherwise related to an in-service injury, event, or disease occurring during this period, to include physical training or martial arts training such as being struck with a pugil stick, or a fall from a ladder. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the back had its onset from April 7, 2003, to November 28, 2008, or is otherwise related to an in-service injury, event, or disease occurring during this period, to include physical training or martial arts. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 6. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disability had its onset from April 7, 2003, to November 28, 2008, or is otherwise related to an in-service injury, event, or disease occurring during this period. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical finding. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.