Citation Nr: A24029718 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 210217-141262 DATE: June 6, 2024 ORDER Entitlement to service connection for a left shoulder condition is granted. Entitlement to service connection for left foot pain is denied. Entitlement to service connection for right foot pain is denied. Entitlement to service connection for left knee pain is denied. Entitlement to service connection for right knee pain is denied. Entitlement to service connection for residuals of right hand trauma is denied. REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a gastrointestinal disorder, claimed as heartburn, is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his currently diagnosed left shoulder condition is related to service. 2. The evidence of record persuasively weighs against finding that the Veteran has had a bilateral foot disability at any time during the pendency of this appeal. 3. The evidence of record persuasively weighs against finding that the Veteran has had a bilateral knee disability at any time during the pendency of this appeal. 4. The evidence of record persuasively weighs against finding that the Veteran has had a right hand disability, or residuals thereof, at any time during the pendency of this appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for residuals of a right hand injury have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army, on active duty from August 2001 to July 2008. His awards include the Combat Infantryman Badge (CIB), Iraq Campaign Medal, and Afghanistan Campaign Medal, among others. This claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated February, April and June 2020. In February 2021, the Veteran filed a timely VA Form 10182. In response, the RO informed him that he had selected the Evidence Lane, and that the RO had placed his appeal onto the AMA Evidence Review docket. Since the Veteran chose the Evidence Review docket, he received notice that he had 90 days from the Board's receipt of his Form 10182 to submit new evidence. The Board thus has reviewed evidence of record up to the rating decisions dated February, April and June 2020, and the 90 days from his February 2021 VA Form 10182. Service Connection Service connection may be granted for a 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). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. §1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Federal Circuit explained that "[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Id. at 999 n.9. Thus, the evidence must show that the "disability [the veteran] incurred in service was a chronic condition that persisted in the years following his active duty." Id. at 1000. 1. Entitlement to service connection for a left shoulder condition. The Veteran contends that his diagnosed left shoulder condition is related to service. After a review of the evidence of record, the Board agrees and finds that service connection is warranted. As an initial matter, in its June 2020 rating decision, the RO made several favorable findings. First, that the Veteran has a current left shoulder disability. Specifically, he was diagnosed with recurrent left shoulder dislocation. Further, that he complained of chronic left shoulder dislocations during service. Thus, the Board finds that a current disability and in-service events are of record. Next, the Board addresses the RO's finding that the Veteran's left shoulder condition pre-existed service. The Veteran underwent a VA examination for his left shoulder disability in March 2020. He was diagnosed with recurrent left shoulder dislocations and the VA examiner opined that his left shoulder condition was at least as likely as not related to service. However, the Veteran stated during the examination that he had dislocated his shoulder prior to service. Following this statement, the RO scheduled him for another VA examination with an opinion regarding aggravation. When determining service connection, a presumption of soundness ordinarily applies. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304 (b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. The Veteran underwent an entrance examination in July 2001. Here, the examining clinician noted his musculoskeletal and upper extremities to be "normal." While they noted a "left shoulder - scar" this was written as secondary to a barbed wire cut two years prior to service. Moreover, in a report of medical history, the Veteran denied shoulder pain or dislocations. Therefore, the Board concludes that the presumption of soundness applies to this case and the service treatment records provide evidence of an in-service injury or symptoms related to the left shoulder. Indeed, in an October 2004 post-deployment questionnaire following a deployment to Iraq, he reported chronic left shoulder dislocations while seeking a surgery referral. In March 2020, the Veteran underwent a VA examination. Here, he was diagnosed with recurrent bilateral shoulder dislocations. Moreover, the VA examiner opined that both the right and left shoulder disorders are related to service. Indeed, a review of the Veteran's service connected conditions show that he is presently service connected for a right shoulder disorder. Given that the presumption of soundness applies, that the Veteran complained of recurrent left shoulder dislocations during service and the positive opinion of the March 2020 VA examiner, the Board finds that service connection is warranted. The Board notes that the May 2020 VA examiner's opinion concludes that the Veteran's left shoulder condition pre-existed military service. Specifically, that the Veteran reported onset of left shoulder dislocations when he was 16 years old prior to enlistment. As a result of this conclusion, the VA examiner opined against service connection. However, as explained above, the Board has determined that the presumption of soundness applies as there is insufficient evidence that he clearly and unmistakably had a pre-existing left shoulder disability upon enlistment. Therefore, this opinion is of no probative value in this case. Affording the Veteran the benefit of the doubt, the Board concludes that his current left shoulder disability is related to his active service. 2. Entitlement to service connection for left foot pain. 3. Entitlement to service connection for right foot pain. 4. Entitlement to service connection for left knee pain. 5. Entitlement to service connection for right knee pain. 6. Entitlement to service connection for residuals of a right hand injury. The Veteran contends that he has bilateral foot, bilateral knee and right hand disabilities that are related to service. Specifically, in argument submitted April 2021, the Veteran indicated that he sustained the above claimed disabilities due to combat. Indeed, he cited several precedential legal cases and federal regulations discussing the combat presumption. The Board notes that the Veteran engaged in combat during service. In the case of any veteran who has engaged in combat with the enemy during active service in a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). The Veteran's service records show that he served in both Iraq and Afghanistan, and that his awards include the CIB. As such, to the extent that the Veteran indicates he sustained bilateral foot, knee and a right hand injury in combat service, the provisions of 38 U.S.C. § 1154(b) are applicable. Nevertheless, the provisions of section 1154(b) only provide a means by which combat veterans may establish the second element of service connection, an in-service event or injury. It does not eliminate the need for evidence of a current disability or a medical nexus. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Accordingly, even when the combat presumption applies, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Boyer v. West, 11 Vet. App. 477, 478-79 (1998) (specifically addressing section 1154(b) and the need for nexus evidence where in-service exposure to acoustic trauma was otherwise established by the record). Here, in a statement dated April 2019, the Veteran wrote that he suffers from bilateral foot and knee pain. He did not describe onset of that pain, to include if it was during combat service. In discussing his right hand trauma, he did state that he "hit insurgent during a patrol, a mission." In post-decisional argument dated April 2021, he indicates that his musculoskeletal pain was incurred during combat service by referencing the combat presumption but does not describe how these injuries were sustained, nor when and where. Regardless, the claim of service connection for bilateral foot, knee and right hand pain fails on the primary criterion of no current disability. Unfortunately, the Veteran has not submitted or identified any competent medical evidence reflecting complaints, treatment, signs, symptoms or diagnoses of these conditions. Indeed, the only description of the claimed disabilities are listed in his initial claim as "pain." The Board recognizes 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." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) at 1367-69. However, the evidence of record does not indicate that the Veteran has had bilateral foot, knee and right hand pain that reaches the level of functional impairment in earning capacity. Moreover, the RO sought VA treatment records from the Austin VA medical center, which returned "no records found." Further, in July 2019 correspondence, the RO informed the Veteran that there were no records and asked him to submit any VA or private treatment records to help his claim. Unfortunately, the Veteran did not submit any treatment records, and there are no additional lay statements describing these disabilities or the effects of his pain on the level of functional impairment. The Board acknowledges the Veteran's contentions that he has disabilities of each foot, both knees and the right hand, sustained during combat operations. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the diagnosis and etiology of his claimed disabilities, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Furthermore, the Board also acknowledges that the Veteran has not been afforded VA examinations for these issues. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In this case, a VA examination is not necessary to decide the claim as there is no competent evidence of current disabilities of the bilateral foot, knee and right hand. Therefore, the Board finds that the RO did not commit a pre-decisional duty to assist error in this case. In sum, the competent and probative evidence of record does not support the presence of bilateral foot, knee and right hand disabilities at any time during the pendency of the claim or recent to the filing of the claim. Therefore, the evidentiary requirement of demonstrating a current disability has not been satisfied for this matter. Without a diagnosis, a claim for service connection fails. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a current disability may include a diagnosis at the time the claim was filed or during its pendency). Accordingly, entitlement to service connection for bilateral foot, knee and right hand disabilities is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is persuasively 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. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that his currently diagnosed right ankle tenosynovitis is related to service. He was afforded a VA examination, and the March 2020 VA examiner opined against service connection because there was "no evidence" of an in-service injury of the right ankle. In the April 2020 rating decision regarding the right ankle, the RO made the favorable finding that evidence shows an in-service injury. Specifically, that a service treatment record dated February 2008, included "ankle problems: duration 2 years." Therefore, the Board finds the opinion of the March 2020 VA examiner to be inadequate as it did not consider the Veteran's in-service injury. Thus, a pre-decisional duty to assist error has been identified and a remand for a new VA examination is warranted. Moreover, the Veteran has indicated that this injury is related to his combat service in Iraq and Afghanistan. He should be given the opportunity to provide a lay statement regarding the circumstances of a right ankle injury sustained in combat. 2. Entitlement to service connection for a gastrointestinal disorder, claimed as heartburn. The Veteran contends that he has heartburn that is related to exposures to burn pits and environmental hazards while serving in Southwest Asia. As noted above, the Veteran had active service in Iraq and Afghanistan; therefore, he is considered a Persian Gulf War Veteran. 38 C.F.R. § 3.317 (e). He seeks service connection for a condition that causes heartburn, and the Board has broadened the claim for one of a gastrointestinal disorder. It is unclear whether the symptom of heartburn is of an undiagnosed illness or medically unexplained multi symptom illness. See 38 C.F.R. § 3.317 (b). To date, the Veteran has not been afforded a Gulf War protocol examination. Therefore, remand is warranted to schedule him for such an examination. The matters are REMANDED for the following action: 1. Invite the Veteran to provide a lay statement regarding the nature of his in-service injury to his right ankle during combat operations. 2. Schedule the Veteran for a VA examination regarding the etiology of his right ankle disorder. The claims file should be provided to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not that any currently diagnosed right ankle condition, is etiologically related to the Veteran's period of active service. The examiner is instructed to accept as fact the Veteran's report of a right ankle injury sustained during combat, if one is provided, despite the lack of a notation of the injury in the STRs. 3. Schedule the Veteran for a VA Gulf War examination by an appropriate clinician to address the nature and etiology of his claimed disability manifested by heartburn. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner is asked to state whether the symptoms of the claimed condition are attributable to a known clinical diagnosis. The examiner is also asked to state whether the Veteran has a disability pattern consistent with: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi symptom illness (MUCMI) of unknown etiology or pathophysiology that is defined by a cluster of signs or symptoms, such as: chronic fatigue syndrome; fibromyalgia; or functional gastrointestinal disorders; (3) a diagnosable chronic multi symptom illness with a partially explained etiology and pathophysiology, or (4) a disease with a clear and specific etiology and diagnosis? An illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. It is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. The determination of whether a condition is a MUCMI must be based on an individual's circumstances rather than the illness as it is understood in the general public. Therefore, in answering this question, the rationale should be specific to this Veteran and address BOTH the etiology and the pathophysiology of this Veteran's illness, if any. If, after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran has a disability pattern that is (1) an undiagnosed illness, (2) a MUCMI or (3) a disease with a clear and specific etiology and diagnosis, then the examiner is asked to provide an opinion as to whether it is related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia, or whether it had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? The examiner should provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required, they should explain why. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald