KNEE IMPAIRMENT OF

NATHAN KROES · 2021 · Case ID: A21002205

DENIED

Summary

The veteran, who served from June 1978 to November 1982, appeals the denial of service connection for bilateral knee and foot disabilities. The veteran also asserted that these conditions might be secondary to his service-connected low back disability. The Board reviewed the evidence, including VA examinations from July 2013 and February 2020, and the veteran's service treatment records (STRs). The veteran's STRs showed no in-service complaints or diagnoses of knee problems, and while there were some foot issues documented, the separation examination in November 1982 indicated normal feet and knees, with the veteran denying any knee or foot trouble. Post-service medical evidence of knee and foot disabilities did not appear until the early 2000s, many years after service. The Board found the veteran's lay assertions of in-service knee problems lacked credibility due to their conflict with the contemporaneous separation examination. VA examiners provided negative opinions for both the knee and foot claims, concluding that the conditions were less likely than not related to service or secondary to the service-connected low back disability. The examiners attributed the current disabilities to morbid obesity and post-service strain. The Board found these opinions highly probative, supported by the lack of in-service complaints, the normal separation examination, and the veteran's own testimony about noticing knee problems in the 1990s. The preponderance of the evidence was found to be against the claims, and service connection was denied for all conditions.

Rationale

No in-service complaints or diagnosis of knee disability in STRs; Normal separation examination; Lay assertions of in-service knee problems lacked credibility; VA examiner opined less likely than not related to service or secondary to low back disability; Disability attributed to morbid obesity and post-service strain

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201119-121512

Full Decision Text

Citation Nr: A21002205
Decision Date: 01/28/21 Archive Date: 01/28/21

DOCKET NO. 201119-121512
DATE: January 28, 2021

ORDER

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for a left foot disability is denied.

Entitlement to service connection for a right foot disability is denied.

FINDINGS OF FACT

1. The Veteran’s left knee disability is not related to his service-connected low back disability, and is not otherwise related to an in-service event, injury, or disease.

2. The Veteran’s right knee disability is not related to his service-connected low back disability, and is not otherwise related to an in-service event, injury, or disease.

3. The Veteran’s left foot disability is not related to his service-connected low back disability, and is not otherwise related to an in-service event, injury, or disease.

4. The Veteran’s right foot disability is not related to his service-connected low back disability, and is not otherwise related to an in-service event, injury, or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

2. The criteria for service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

3. The criteria for service connection for a left foot disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

4. The criteria for service connection for a right foot disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1978 to November 1982.

By way of history, a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denied these claims and the Veteran perfected an appeal in VA’s Legacy appeals system. The Veteran appeared at a hearing with the undersigned Veterans Law Judge in November 2018 and the issues were remanded by the Board in March 2019, along with the additional claim of service connection for a low back disability. Subsequently, service connection for the Veteran’s low back disability was granted. After issuance of a Supplemental Statement of the Case in October 2020 addressing the issues on the title page, the Veteran opted into the modernized review system as detailed in the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55 (2017) (also known as the “Appeals Modernization Act” (AMA)). 38 C.F.R. § 19.2(d). At that time, he requested direct review of the evidence considered by the Department of VA RO in the Supplemental Statement of the Case. 38 C.F.R. § 20.202. As such, the Veteran’s appeal as to his bilateral knee and foot disability claims are now before the Board under the AMA appeals system and have been assigned the new docket number noted in the header of this decision.

Service Connection

The Veteran asserts that he has bilateral knee and foot disabilities that are related to his military service. He has also asserted the additional theory that his knee and foot disabilities may be secondary to his low back disability. For the reasons that follow, however, the Board finds that service connection for any bilateral knee and foot disability is not warranted.

Service Connection

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). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310.

VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The Veteran has current knee and foot disabilities. For example, at a VA knee examination in February 2020 afforded pursuant to the Board’s last remand, he was diagnosed with bilateral degenerative arthritis. Additionally, a VA foot examination in July 2013 indicated bilateral plantar fasciitis with heel spurs, as well as minimal degenerative changes to the first metatarsophalangeal (MTP) joints (the “big toe”). The Board notes that, while an additional VA examination in February 2020 revealed normal feet, the examination report does acknowledge the Veteran’s reports of ongoing foot pain with difficulty walking and pain on weight-bearing for VA disability purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (finding pain resulting in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability); Martinez-Bodon v. Wilkie, No. 18-3721 (Fed. Cir. 2020) (finding that the holding that Saunders is not limited to pain alone, but rather, the definition of “disability” in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any condition that results in functional impairment of earning capacity). Thus, the remaining question is whether the Veteran’s current knee and foot disabilities are related to service or a service-connected disability.

Service treatment records (STRs) show no complaints, diagnosis, or treatment related to a knee disability. As the Veteran reported other ailments during service, including orthopedic problems, and knee problems are the type that a reasonable person would report, if the Veteran was experiencing problems with either knee during service the Board would expect that he would have reported these problems to medical professionals. The Veteran did, however, have reports of several separate foot issues, including two separate toe fractures, left heel pain in August 1979 (where radiographs were normal), and removal of a foreign body in June 1982. His remaining STRs are absent any ongoing foot issues. During his November 1982 separation examination, evaluation of both the feet and knees were normal. In a corresponding report of medical history, the Veteran specifically denied having had a history of swollen or painful joints, arthritis, lameness, a
problems, and knee problems are the type that a reasonable person would report, if the Veteran was experiencing problems with either knee during service the Board would expect that he would have reported these problems to medical professionals. The Veteran did, however, have reports of several separate foot issues, including two separate toe fractures, left heel pain in August 1979 (where radiographs were normal), and removal of a foreign body in June 1982. His remaining STRs are absent any ongoing foot issues. During his November 1982 separation examination, evaluation of both the feet and knees were normal. In a corresponding report of medical history, the Veteran specifically denied having had a history of swollen or painful joints, arthritis, lameness, a “trick” or locked knee, or foot trouble. If ongoing foot or knee pain was present during service, the Board would expect the Veteran would have responded “yes” when asked if he had painful joints, a “trick” knee, or foot trouble at separation because a reasonable person would have interpreted the question to include symptoms of knee or foot pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having knee or foot conditions.

Post-service, knee and foot pain/disabilities are not shown by medical evidence until at least the early 2000’s, many years after the Veteran’s separation from service. The Veteran testified that he did not start to notice problems with his knees until 1994 or 1995. November 2018 Hearing Tr. at 28.

The Board notes that the Veteran asserted at his hearing that he had VA treatment beginning shortly after his service separation in 1982 at the Asheville, North Carolina, VA Medical Center (VAMC). Records prior to 1997, however, are absent from the claims file. Review of the record since the Veteran’s hearing indicates that additional VA treatment records from the Asheville VAMC have been added to the Veteran’s claims file, with VA correspondence dated March 2019 indicating that additional records dated prior to August 2000 could not be located and that all efforts to obtain the needed information had been exhausted.

As chronic knee and foot disabilities are not shown to have been present during service or in the first year after separation from service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of chronic knee and foot disabilities cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied knee and foot issues. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Again, the Veteran testified he did not notice knee problems until the 1990’s, more than 10 years after his separation from service. While service connection cannot be presumed, service connection could still be granted if the evidence indicates the current disabilities are related to an in-service event, injury, or disease. 38 C.F.R. § 3.303.

The Veteran initially presented for a VA knee and foot examinations in July 2013 in support of his original August 2012 service connection claim, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. As to the Veteran’s knee claims, the examiner noted the Veteran’s report of knee pain in service during basic training and after jumping off a truck while stationed in Japan, and diagnosed bilateral osteoarthritis. The examiner opined, however, that it was less likely than not that his bilateral knee disabilities were related to service, explaining that the Veteran’s STRs are absent in-service knee pain, including at separation. As to the Veteran’s foot disabilities, diagnosed at the time as bilateral plantar fasciitis with heel spurs and osteoarthritis of the first MTP joint, the examiner also opined in the negative, explaining that the Veteran’s in-service foot problems would not predispose him to the later development of his current conditions. The examiner also noted that the Veteran’s separation physical was normal, and he denied foot trouble at the time, “thereby indicating no long term foot condition had occurred during service.”

As the Board noted in its previous remand, however, the Veteran argued at his hearing before the undersigned that the VA examiner’s opinions did not consider medical treatment records outside of his military personnel records, including VA treatment records dated since his service separation that document ongoing knee and foot pain. Upon review of the VA examination reports, the Board agreed that there was some question as to whether the Veteran’s post-service treatment records available in the claims file at the time were in fact reviewed in conjunction with the above etiological opinions. While the examiner checked off the box indicating that the Veteran’s entire file was reviewed, she also noted which specific records that were reviewed, none of which were VA treatment records. Moreover, the examiner’s rationale for her opinion included only a timeline of several in-service treatment records related to his claimed disabilities, concluding with his November 1982 separation examination. No further records were discussed. Additionally, the Board noted that the Veteran asserted the additional theory that his knee and foot disabilities may be secondary to his now-service-connected low back disability.

As such, the Board remanded the Veteran’s claims for additional VA examinations and opinions that addressed all medical evidence of record, to include post service medical treatment records, as well as his secondary service connection theory of entitlement. The examinations and opinions were provided in February 2020, as well as an addendum in October 2020.

As to both the Veteran’s current knee and foot disabilities, the examiner again provided negative etiological opinions, finding it less likely than not the Veteran’s bilateral knee and foot disabilities were caused or aggravated by his military service or the service-connected low back disability. In support of these conclusions, the examiner noted the Veteran’s history of morbid obesity, and explained that his knee and foot disabilities were due to extra weight strain and years of working on his feet post-service, and medically unrelated to his service-connected low back disability. Additionally, and as to the assertion that his low back disability led to obesity, the examiner opined in an October 2020 addendum that his service-connected low back disability did not cause the Veteran to become obese, and therefore could not be a substantial factor in causing his knee or foot disabilities. The examiner explained that, while certain medical conditions can limit activities, none of this Veteran’s conditions eliminated watching his calorie intake and performing light exercise. Read as a whole the opinion is also against a finding that the Veteran’s obesity was aggravated by his service-connected low back disability.

The Board finds the above opinions, as a whole, to be highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. The opinions are also supported by other evidence of record, which includes no medical evidence of knee or foot problems post-service until the early 2000s, as well as a history of obesity that stretches back to the Veteran’s military service where his STRs note physicians encouraging weight management through diet and exercise. The Board notes that there is no suggestion in either his in-service or post-service medical records that his obesity was the result of service or any now-service-connected disability.

The Board has also considered the Veteran’s statements, to include his assertions that his knee and foot disabilities are related to service. As 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., knee and foot 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 opine 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. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale.

For the above reasons, the preponderance of the evidence is against the claims and service connection for bilateral knee and foot disabilities must be denied.

In reaching
contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine 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. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale.

For the above reasons, the preponderance of the evidence is against the claims and service connection for bilateral knee and foot disabilities must be denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Nathan Kroes

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board R. Scarduzio, 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.

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