Citation Nr: A24068898 Decision Date: 10/25/24 Archive Date: 10/25/24 DOCKET NO. 220609-249938 DATE: October 25, 2024 ORDER Entitlement to service connection for bilateral ear pain is denied. Entitlement to service connection for hemorrhoids is denied. REMANDED Entitlement to service connection for right foot heel spur is remanded. FINDINGS OF FACT 1. The evidence of record weighs against a finding that the Veteran has had a bilateral ear pain disability for Department of Veterans Affairs (VA) compensation purposes at any time during or approximate to the pendency of the claim. 2. At no time during the pendency of the claim does the Veteran have a diagnosis of hemorrhoids, and the record does not contain a recent diagnosis of hemorrhoids prior to the Veteran's filing of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral ear pain are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102. 2. The criteria for service connection for hemorrhoids are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from June 14, 1999 to June 13, 2004. This matter comes to the Board of Veterans' Appeals (Board) from a June 2022 Higher Level Review (HLR) rating decision. The June 2022 HLR rating decision reviewed an April 20, 2022 rating decision that denied entitlement to service connection for bilateral ear pain, hemorrhoids, and right foot heel spur. In June 2022, the Veteran appealed to the Board by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected the Direct Review Docket. As the Veteran has selected the Direct Review Docket, the Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its decision on the issues on appeal, namely the April 20, 2022 rating decision. See 38 C.F.R. §§ 20.300(a), 20.301. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, the AOJ will readjudicate the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection To establish service connection, it is required that the evidence demonstrates a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pain, alone, is not a disability that would warrant service connection; however, pain with functional impairment can be considered for service connection. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). To establish the presence of a disability, the veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. A disability under Saunders requires competent evidence demonstrating that the symptoms result in functional impairment that in fact affects the veteran's earning capacity. See Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. The rating schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 17. In making all determinations, the Board must fully consider all the relevant medical evidence as well as lay evidence. Furthermore, it is required to assess the competency and credibility of the relevant evidence, and to consider its probative weight. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1373, 1376-77 (Fed. Cir 2007). Finally, when determining whether service connection is warranted, VA is responsible for determining whether the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc). The Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance and does not require that the evidence be in exact equipoise. Id. 1. Service connection for bilateral ear pain is denied. In November 2021, the Veteran filed a claim for bilateral ear pain. See VA Form 21-526EZ, dated November 2021. The initial question for the Board is whether the Veteran has a current disability that began during service or is related to an in-service injury, event, or disease based on the evidence of record at the time of the April 20, 2022 AOJ rating decision that denied service connection for bilateral ear pain. See 38 C.F.R. §§ 20.300(a), 20.301. Service treatment records show an April 6, 2004 report from R.A., MA, CC-A, that reflects that the Veteran reported "a sensation of ears wanting to pop with change in perception of people's voices" and "occasional feeling of ears needing to pop but with no significant hearing loss evident." The remainder of the service treatment records do not reflect any other complaints of, treatment for, or a diagnosis of bilateral ear pain. Subsequent records show that in a November 30, 2021 internal medicine treatment note the Veteran complained of ear pain for the past 20 years. In April 2022, the Veteran underwent an ear examination, and no vestibular, infectious, inflammatory and other ear condition was found or identified. The examiner noted that the Veteran stated the ear pain started in 2020 after right shoulder surgery, the pain was worsening and constant behind the right ear, but that it was relieved with cupping treatment of the right shoulder. The examiner did not note any function impact as a result of the subjective ear pain. The examiner also noted that a March 2022 audiogram showed normal hearing in the right and left ear, and that the Veteran had bilateral tinnitus. The examiner also checked the box for "No" in response to the question of whether the Veteran's ear condition impacted his ability to work. In the Remarks section of the examination, the examiner remarked that the "[p]hysical exam fails to find objective evidence of bilateral ear conditions. Symptoms of pain behind the right ear are subject only." Then the examiner in a separate opinion of the same date, again found the ear pain to be only subjective, with no diagnosis. The examiner then noted that the Veteran in a November 30, 2021, treatment note stated that he had ear pain for the past 20 years, but that in the examination told the examiner that the ear pain began about 2 years prior, dating it to 2020, and had the onset after a right should surgery. As there was no diagnosis, the examiner stated no relationship between the ear pain and service could be established. The Board finds that the examination and opinion of the VA ear examiner highly probative as they reflect consideration of all relevant facts, including the Veteran's statements, and the examiners provided a rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the Board acknowledges that "pain alone, without an accompanying diagnosis or identifiable condition," can be a disability for the purpose of establishing service connection. See Saunders, 866 F.3d 1368. However, 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." Id. at 1367. Because the April 2022 VA examiner, after noting the Veteran's subjective ear pain, did not find that it caused functional impairment of earned capacity, the Board finds that the bilateral ear pain is subjective pain that does not cause functional impairment, and that there is no disability. Saunders, 866 F.3d at 1367; See Petitti v. McDonald, 27 Vet. App. 415, 428 (2015). Based on the foregoing, the Board finds the evidence persuasively weighs against the claim as there is no diagnosis, to include under Saunders, and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc); 38 C.F.R. § 3.102. 2. Service connection for hemorrhoids is denied. In November 2021, the Veteran filed a claim for hemorrhoids. See VA Form 21-526EZ, dated November 2021. The question for the Board is whether the Veteran has a current disability that began during service or is related to an in-service injury, event, or disease based on the evidence of record at the time of the April 20, 2022 AOJ rating decision that denied service connection for hemorrhoids. See 38 C.F.R. §§ 20.300(a), 20.301. Service treatment records do not reflect complaints of, treatment for or a diagnosis of hemorrhoids. Post-service records do not reflect complaints of, treatment for or a diagnosis of hemorrhoids either. Based on the evidence of record, the Veteran does not have a current diagnosis of hemorrhoids and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has not made any contentions to substantiate his claim for service connection for hemorrhoids. Even though by filing his claim he asserts his belief that he has hemorrhoids and that it should be service connected, the Veteran is not competent to provide a diagnosis or opinion in this case as he lacks the requisite medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Without evidence of a current disability, the claim for service connection for hemorrhoids must be denied. 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The Veteran has not been afforded a VA examination for his hemorrhoid claim and the Board finds that no examination is necessary. See 38 U.S.C. § 5103A(d). VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. Here, based on the evidence of record, the Board finds that the McLendon criteria are not satisfied, as the evidence demonstrates that none of the prongs of McLendon are met. Id. Thus, the Board finds the evidence persuasively weighs against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Lynch, 21 F.4th 781-82 (Fed. Cir. 2021) (en banc); 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for right foot heel spur is remanded. In November 2021, the Veteran filed a claim for right foot heel spur. See VA Form 21-526EZ, dated November 2021. Service treatment records note complaints of right foot plantar issues, including a June 22, 2000, which noted complaints of painful calluses of 2 months on his feet and "plantar foot". In April 2022, the Veteran underwent an examination for a right foot heel spur and the examiner found he did not have that condition. In the medical history section, the date of onset was stated as 2002-2004, that the right heel pain was caused by the physical activities in service and that the current symptoms was "Right heel pain with prolonged walking or walking on hard surfaces without support." In response to the question of did the Veteran report pain, the examiner checked the "Yes" box and stated, "Right heel is sore after prolonged weight bearing activities." In response to the question of "Does the Veteran report having any functional loss, or functional impairment, of the joint or extremity being evaluated on this questionnaire, including but not limited to repeated use over time" the examiner checked the "Yes" box and stated, "Difficulty standing for long periods after repetitive use over time." In the "Pain" section of the report, the examiner checked the box for "No" in response to whether there was pain on physical examination and explained that there was "Subjective complaint of pain in the right heel with prolonged periods of weight bearing [but] [t]he exam is not being conducted after a prolonged period of weight bearing, therefore, no pain is noted on exam." In the response to the question of whether there is evidence to "suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability during flare-ups and/or after repeated use over time" the examiner checked the "Yes" box and stated, "pain in the heel with repetitive use over time per report from Veteran." Then the examiner in a separate opinion of the same date, found that there was no diagnosis of right foot heel spur and that because a foot diagnosis was not rendered, there is no nexus between that claimed condition and service. The Board finds that the April 2022 foot opinion is inadequate as it did not adequately address whether the Veteran's reports of right foot pain are productive of functional impairment, and if so, if the right foot pain is related to service. Thus, on remand, an addendum opinion should be obtained to determine the nature and etiology of the Veteran's right foot pain, to include whether the reported complaints for pain constitute functional impairment pursuant to Saunders. This remand is required to cure this aforementioned pre-decisional duty to assist error. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Request an addendum to the April 2022 foot opinion to determine the nature and etiology of the right foot condition. The clinician providing the opinion must be provided access to the electronic claims file and indicate review of the file in the examination report. If examination of the Veteran is necessary, such should be arranged. The examiner is asked to address and determine the following: 1. Whether the Veteran's reports of right foot pain during the appeal period are productive of functional impairment? (The examiner must be advised that it is not necessary for pain to be attributed to a specific diagnosis to be considered a service-connected disability as long as the pain is productive of functional impairment). 2. If the right foot pain is productive of functional impairment, the examiner should determine whether the right foot pain had onset during service or is otherwise related to an in-service injury, event, or disease. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Imber, Michael G. 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.