Citation Nr: 18124092
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 14-13 617
DATE:	August 7, 2018
ORDER
Entitlement to service connection for a left knee disability, to include as secondary to right knee disability, is denied.
REMANDED
Entitlement to service connection for status post arthrotomy, right knee, with early degenerative joint disease (DJD) is remanded.
Entitlement to service connection for lumbar strain is remanded.
Entitlement to service connection for a skin disorder, claimed as tinea versicolor, is remanded.
FINDING OF FACT
The Veteran’s left knee pain does not cause functional impairment; nor does the Veteran have a diagnosed left knee disability.
CONCLUSION OF LAW
The criteria for service connection for a left knee disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Entitlement to service connection for a left knee disability, to include as secondary to right knee disability.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)).  
Service connection may also be granted for any disease initially diagnosed after service 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).
Additionally, secondary service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 48 (1995).
Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran.  38 U.S.C. § 5107(b).
Here, the Veteran is seeking service connection for a left knee disability contending that his left knee pain is caused by his right knee condition.  Specifically, the Veteran contended in his hearing that he places more weight on his left knee due to his right knee condition.  After reviewing the evidence, the Board finds that service connection is not warranted as the Veteran does not have a current left knee disability.
The Veteran’s service treatment records do not show complaints, treatment, or any diagnosis pertaining to a left knee injury.  The Veteran also explained in his hearing that he had no actual injury to his left knee, but that he only places extra weight on it because of his right knee.
In August 2012, the Veteran received a general VA examination.  With regard to his left knee, the examiner noted that the Veteran’s left knee flexion and extension were within normal limits with no objective evidence of painful motion.  The examiner further noted that the Veteran’s left knee muscle strength testing was normal, joint stability tests were normal, and there was no evidence of functional loss or functional impairment.  An x-ray of the Veteran’s left knee showed no abnormalities.  The examiner ultimately determined that the Veteran’s left knee was normal.
Considering the above and remaining evidence of record, the Board finds that service connection for a left knee disability is not warranted.  Although the Veteran reports pain in his left knee, the Veteran does not have a diagnosed disability.  The Board recognizes that the recent federal court decision of Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. April 2018) recognizes pain as a disability if there is objective evidence of functional impairment; however, in the Veteran’s case, there are only subjective complaints of pain.  Moreover, the August 2012 examiner found no evidence of functional loss or functional impairment to the Veteran’s left knee and there is no other evidence of record to the contrary.
As mentioned above, a critical element of service connection requires a current disability.  The evidence does not show that the Veteran has functional impairment to his left knee or a diagnosed left knee disability.  As such, in the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Accordingly, the claim of service connection for a left knee disability must be denied as a matter of law; therefore, the benefit-of-the-doubt doctrine is not applicable. As such, service connection is not warranted.
REASONS FOR REMAND
1. Entitlement to service connection for status post arthrotomy, right knee, with early degenerative joint disease (DJD) is remanded.
2. Entitlement to service connection for lumbar strain is remanded.
3. Entitlement to service connection for a skin disorder, claimed as tinea versicolor, is remanded.
After reviewing the record, the Board finds that further development is necessary before the Board can properly adjudicate the Veteran’s claims.  
With regard to the Veteran’s right knee disability, the evidence shows that the Veteran had a pre-existing right knee injury, including surgery, prior to service.  STRs show that the Veteran had a right knee sprain while in service resulting in medical limitations for three days, and post-service records show that the Veteran has early DJD of the right knee.  During the Veteran’s August 2012 examination, the examiner determined that the Veteran’s pre-existing right knee injury was not aggravated by the Veteran’s active duty service; however, the examiner did not provide a medical rationale to support his position.  Moreover, the examiner did not use the “clear and unmistakable” standard in determining that there was no aggravation to the Veteran’s right knee.  As a result, the Board finds the opinion inadequate in this regard for adjudication purposes.  Consequently, a new medical opinion is warranted.  
Concerning the Veteran’s claims of service connection for a low back condition and skin condition, the Board finds that addendum opinions are warranted.  In so finding, the Board notes that although the August 2012 examiner provided examinations for these conditions, the examiner did not provide a nexus opinion to determine whether the conditions had their onset or were caused by the Veteran’s active duty service.  In addition, with regard to the Veteran’s skin condition, the examiner noted that the Veteran did not exhibit a skin condition at the time of the examination; however, the Veteran testified that medical professionals have advised that the condition is one that is recurrent.  Moreover, this notion is supported by a subsequent treatment note from February 2016 where the Veteran’s diagnosed skin condition was changed from tinea versicolor to pityriasis versicolor.  Therefore, given that the Veteran’s skin condition may be recurrent, and considering the new diagnosis, these factors should be considered in determining the etiology of his skin condition.  Thus, a new examination and medical opinion is warranted.     
The matters are REMANDED for the following action:
1. Obtain all of the Veteran’s outstanding VA treatment records since February 2014, and any other medical evidence that may have come into existence or is identified since the time the Veteran’s claim was filed.  All efforts to obtain these records must be documented in the Veteran’s claim file.  
2. Obtain a medical opinion from a qualified physician to determine the etiology of the Veteran’s right knee disability.  The claims file must be made available to, and reviewed by the examiner.  Afford the Veteran a VA examination only if deemed necessary by the examiner.  
3. The examiner should provide an opinion as to whether there is clear and unmistakable (i.e. obvious and manifest) evidence that the Veteran’s right knee condition was NOT aggravated (permanently worsened) beyond the natural progression by his active service? 
A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion.
4. Obtain a medical opinion from a qualified physician to determine the etiology of the Veteran’s back disability.  The claims file must be made available to, and reviewed by the examiner.  Afford the Veteran a VA examination only if deemed necessary by the examiner.  
5. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s back disability began in service, was caused by service, or is otherwise etiologically related to the Veteran’s active service.
A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion.
6. Afford the Veteran a VA examination from a dermatologist, if available; or other qualified physician to determine the etiology of the Veteran’s skin disorder.  The claims file must be made available to, and reviewed by the examiner.    
a)	Based on an examination of the Veteran and a review of the record, the examiner should first identify all skin disorders present during the pendency of the claim.  If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. 
b)	The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s skin disorder began in service, was caused by service, or is otherwise etiologically related to the Veteran’s active service.
c)	The examiner should consider and explain the recurrent nature of the Veteran’s skin disorder, if any.
(Continued on the next page)
 
A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion.
 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Laffitte, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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