Case A26040012

T. BERRY · 2026 · Case ID: A26040012

DENIED

Summary

The veteran, who served in the United States Marine Corps from January 2000 to February 2008, appeals the denial of service connection for a shoulder condition, bilateral knee condition, right hip condition, and radiculopathy of the left lower extremity. The Board reviewed the evidence of record at the time of the agency of original jurisdiction's decision, as the veteran withdrew a previously requested hearing. For the shoulder condition, the Board denied service connection, finding no current disability based on a VA examination that revealed normal range of motion and no objective evidence of a shoulder disability, despite the veteran's reported burning pain. The Board noted that while pain alone can constitute a disability if it causes functional impairment, the veteran did not argue for such impairment. For the bilateral knee condition, the Board acknowledged a favorable finding of right knee joint pain in December 2011 but denied service connection due to the absence of any in-service complaints or treatment records related to the knees, with complaints only appearing over three years post-service. Similarly, for the right hip condition, the Board acknowledged a favorable finding of right hip pain and arthritic changes in January 2014 but denied service connection due to the lack of in-service complaints or records, with complaints appearing over six years post-service and no evidence of continuity of symptomatology. For radiculopathy of the left lower extremity, the Board denied service connection, finding no current disability or diagnosis in the veteran's medical records, and no objective evidence of functional impairment. In all four denied claims, the Board found the evidence persuasively weighed against service connection, rendering the benefit of the doubt doctrine inapplicable.

Rationale

No current disability found by VA examiner.; Veteran's reported pain did not demonstrate functional impairment.; Evidence persuasively weighs against service connection.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210823-181096

Full Decision Text

Citation Nr: A26040012
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210823-181096
DATE: April 29, 2026

ORDER

Entitlement to service connection for a shoulder condition is denied.

Entitlement to service connection for a bilateral knee condition is denied.

Entitlement to service connection for a right hip condition is denied.

Entitlement to service connection for radiculopathy of left lower extremity is denied.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has been diagnosed with a shoulder disability at any time during or approximate to the pendency of the claim.

2. The evidence of record persuasively weighs against finding that a bilateral knee disability began during active service, or is otherwise related to an in-service injury or disease.

3. The evidence of record persuasively weighs against finding that a right hip disability began during active service, or is otherwise related to an in-service injury or disease.

4. The evidence of record persuasively weighs against finding that the Veteran has been diagnosed with radiculopathy of the left lower extremity at any time during or approximate to the pendency of the claim.

CONCLUSIONS OF LAW

1. The criteria for service connection for a shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

4. The criteria for service connection for radiculopathy of the left lower extremity are not 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 United States Marine Corps from January 2000 to January 2004 and from January 2004 to February 2008.

The matter comes to the Board of Veterans' Appeals (Board) from May 2021 and June 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On April 30, 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the May 2020 (bilateral knees), agency of original jurisdiction (AOJ) decision on appeal, which was subsequently subject to higher level review, and the May and June 2021 rating decisions, as well as any evidence submitted by the Veteran within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

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, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

In the Veteran's August 23, 2021 VA Form 10182, she listed the following claims: shoulder condition, bilateral knee condition, right hip condition, radiculopathy of the left lower extremity, neck condition, bladder condition, vocal cord dysfunction, dizziness, bilateral forearm condition, bilateral foot condition, chronic cough, right hand condition, bilateral wrist condition, kidney condition, liver condition, back condition, sinusitis, and hemorrhoids. There were no rating decisions adjudicating claims
1. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

In the Veteran's August 23, 2021 VA Form 10182, she listed the following claims: shoulder condition, bilateral knee condition, right hip condition, radiculopathy of the left lower extremity, neck condition, bladder condition, vocal cord dysfunction, dizziness, bilateral forearm condition, bilateral foot condition, chronic cough, right hand condition, bilateral wrist condition, kidney condition, liver condition, back condition, sinusitis, and hemorrhoids. There were no rating decisions adjudicating claims for a kidney condition within one year of the VA Form 10182, and therefore that claim must be dismissed. 38 C.F.R. § 20.202.

In a September 22, 2021 VA Form 10182, the Veteran made a docket switch to the evidence submission docket for all claims with the exception of a shoulder condition, bilateral knee condition, right hip condition, and radiculopathy of the left lower extremity. Those other claims were all addressed in an April 28, 2025 Board decision.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he or she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain, 21 Vet. App. at 321. In other words, where competent medical evidence indicates that the veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

However, where pain alone results in functional impairment affecting earning capacity, the Veteran is considered to have a disability, even if there is no identified underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Requirement for VA Examination

A VA examination is required 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(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence
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(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.

1. Entitlement to service connection for a shoulder condition is denied.

The Veteran states that she is entitled to service connection for a shoulder condition. After a careful review of the record, the Board determines that the matter must be denied. The reasons follow.

The first element of direct service connection is that the Veteran has a current disability.

In May 2021, the Veteran was afforded a VA examination. The Veteran reported that her neck and shoulders are constantly burning. She stated that the symptoms started while wearing body armor in service. She stated that the symptoms are worse with standing. The Veteran reported daily flare-ups of her shoulders at work that result in increased pain. She stated that these flare-ups are precipitated by excessive use. The Veteran reported difficulty walking and standing.

The VA examiner determined that there was no current diagnosis for a shoulder condition. The VA examiner noted normal active and passive range of motion on both shoulders, with no evidence of pain or crepitus. The VA examiner also noted that there was no evidence to suggest pain, fatiguability, weakness, lack of endurance, or incoordination that significantly limits functional ability with flare-ups in either shoulder. Further, no muscle atrophy or ankylosis was noted. The VA examiner stated that there was no objective evidence identified during the examination to make a diagnosis of a disability.

The Board has considered whether the Veteran has a current disability under the holding in Saunders v. Wilkie. Pain alone can qualify as a disability when it creates a functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Functional impairment is defined as the inability of a part of the body "to function under the ordinary conditions of daily life including employment." Id.; 38 C.F.R. § 4.10. Disability as used in 38 U.S.C. § 1110 is defined as "the functional impairment of earning capacity, not the underlying cause of said disability." 38 U.S.C. § 1110; Saunders, 886 F.3d at 1363. Accordingly, "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders, 886 F.3d at 1367. While the Veteran notes burning in her shoulders, and states that it increases at work, there is no indication from the evidence of record that there is a functional impairment such that earning capacity is impaired, and the Veteran does not argue that she has such a functional impairment. Therefore, the Board finds that the first element for direct service connection is not satisfied.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Evidence must show that the Veteran has the disability for which benefits are being claimed. As no current disability has been shown, the Board does not address the remaining elements of service connection.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a shoulder disability is warranted. Rather, the evidence persuasively weighs against service connection for a shoulder disability. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claim for service connection for a shoulder disability is denied.

2. Entitlement to service connection for a bilateral knee condition is denied.

The Veteran states
the evidence persuasively weighs against service connection for a shoulder disability. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claim for service connection for a shoulder disability is denied.

2. Entitlement to service connection for a bilateral knee condition is denied.

The Veteran states that she is entitled to service connection for a bilateral knee condition. After a careful review of the record, the Board determines that the matter must be denied. The reasons follow.

The first element for direct service connection is that the Veteran has a current disability. In a May 2021 rating decision, the RO made the favorable finding that the Veteran had been diagnosed with right knee joint pain in December 2011. The Board will not disturb this favorable finding. 38 C.F.R. § 3.104(c). The first element for direct service connection has been satisfied.

Next, there must be an in-service incurrence or aggravation of a disease or injury. A thorough review of the Veteran's service treatment records reveals no mention of a knee injury or symptomatology. The Veteran's medical treatment records do not show any knee complaints until December 2011, over three years post-service. As there is no in-service incurrence, the second element of direct service connection has not been satisfied.

Finally, direct service connection requires a nexus between the current disability and the in-service event or injury. Here, there can be no nexus because the evidence weighs against a finding that there was an in-service event or injury. There is also no nexus opinion as the Veteran's claim was denied without a VA examination. In order to be entitled to a VA examination under McLendon, there must first be evidence of a current disability. The RO made a favorable finding that in December 2011, the Veteran reported right knee joint pain. The first element has been satisfied. Next, McLendon requires that there be evidence that an event, injury, or disease occurred in service. As previously noted, the Veteran's service treatment records do not contain any complaints involving the knees, and the Veteran has not provided any statement as to how her knees were injured during service. The second element of McLendon was not met, and the RO was not required to provide the Veteran with a VA examination.

Therefore, the second and third elements for direct service connection are not satisfied.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a bilateral knee disability is warranted. Rather, the evidence persuasively weighs against service connection for a bilateral knee disability. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claim for service connection for a bilateral knee disability is denied.

3. Entitlement to service connection for a right hip condition is denied.

The Veteran states that she is entitled to service connection for a right hip condition. After a careful review of the record, the Board has determined that this matter must be denied. The reasons follow.

In a May 2021 rating decision, the RO made the favorable finding that the Veteran was diagnosed with a disability. The RO stated that the Veteran's medical records showed right hip pain on January 14, 2014, with X-ray evidence of arthritic changes. The Board will not disturb this favorable finding. 38 C.F.R. § 3.104(c).

Next, there must be an in-service incurrence or aggravation of a disease or injury. A thorough review of the Veteran's service treatment records reveals no mention of any right hip injury or symptomatology. The Veteran's medical treatment records do not show any right hip complaints until January 2014, over six years post-service. As there was no in-service incurrence, the second element of direct service connection has not been satisfied.

Finally, direct service connection requires that there be a nexus between the Veteran's right hip disability and in-service event or injury. There is no nexus here as the evidence weighs against a finding that there was an in-service event or injury. Further, there is no nexus opinion as the Veteran's claim was denied without a VA examination. In order to be entitled to a VA examination under McLendon, there must first be evidence of a current disability. The RO made a favorable finding that in January 2014, the Veteran reported right hip pain. The first element has been satisfied. Second, McLendon requires that there be evidence that an event, injury, or disease occurred in service. The Veteran's service treatment records are silent for any complaints involving the right hip, and the Veteran has not provided any statement as to how her right hip was injured during service. The second element of McLendon has not been satisfied, and the RO was not required to provide the Veteran with a VA examination.

Therefore, the second and third elements of direct service connection were not satisfied.

The Veteran's January 14, 2014 medical record showed X-ray evidence of arthritic changes in the right hip. Certain chronic diseases, including arthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 C.F.R. §§ 3.307(a)(3), 3.309. Here, the evidence of record weighs against a finding that the Veteran's arthritis manifested to a compensable degree in the year following discharge as there are no records indicative of arthritis in the right hip before the January 2014 medical records, which were six years post-service. Alternatively, if a chronic disease listed is not noted during service or the presumptive period, then a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence of record does not support continuity of symptomatology as there is no notation of right hip arthritis in the Veteran's record prior to January 2014.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a right hip disability is warranted. Rather, the evidence persuasively weighs against service connection for a right hip disability. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claim for service connection for a right hip disability is denied.

4. Entitlement to service connection for radiculopathy of left lower extremity is denied.

The Veteran states that she is entitled to service connection for radiculopathy of the left lower extremity. After a careful review of the record, the Board determines that this matter must be denied. The reasons follow.

The first element of service connection requires a current disability. A thorough review of the Veteran's VA medical records reveals no symptomatology or diagnosis of radiculopathy of the left lower extremity.

The Board acknowledges that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). This foundation may be laid by a finding that the fact
absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). This foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. Id; Buczynski, 24 Vet. App. at 224. Such a finding constitutes "contradictory" evidence weighing against the credibility of a claimant's testimony.

Here, although the Veteran has received treatment for a number of conditions, no notation of radiculopathy of the left lower extremity exists in the Veteran's medical treatment records. In addition, there is no objective medical evidence of record competently showing that radiculopathy of the left lower extremity has resulted in functional impairment in earning capacity to arise to the level of disability for VA purposes. Nor does the Veteran so assert. See Saunders, 886 F.3d 1367. Therefore, the first element of service connection is not satisfied.

Based on the foregoing, the evidence persuasively establishes that the Veteran does not have a current radiculopathy of the left lower extremity disability. As there is no medical evidence indicating that the Veteran has the claimed disability, there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225.

As there is no current disability with respect to the lower left extremity, the Board does not reach the remaining elements of service connection, including whether the claimed condition is related to service.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for radiculopathy of the left lower extremity is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claim for service connection for radiculopathy of the left lower extremity is denied.

T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Fleming, Shelley M.

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.

Analyze in VA Law Explorer