Case A25005724

K.A. KENNERLY · 2025 · Case ID: A25005724

DENIED

Summary

The veteran, who served in the United States Army from June 1953 to May 1955, appealed the denial of service connection for several conditions. During a September 2024 hearing, the veteran explicitly withdrew the appeal for entitlement to service connection for right knee, right hip, and right ankle disabilities, which the Board dismissed as withdrawn. The veteran also claimed entitlement to service connection for a left foot disability, including painful neurovascular bundle and calluses, secondary to a service-connected left knee disability. The Board denied this claim, finding no current diagnosis of neurovascular bundle and insufficient evidence of functional impairment in earning capacity due to left foot pain. For the calluses, while a current diagnosis and service connection for the left knee were present, the Board found the private medical opinion lacked probative value due to inadequate rationale and reliance on lay assertions. The veteran also claimed service connection for a low back disability, left hip disability, and left ankle disability, asserting they were secondary to the left knee disability. Additionally, the veteran claimed a respiratory disability, including pleurisy, bronchitis, and lung cancer, related to service and potential fuel/fume exposure. The Board denied these claims, finding no current diagnoses for the low back, left hip, or left ankle disabilities, and insufficient evidence of functional impairment. For the respiratory claim, despite the veteran's testimony of treatment, the record lacked current diagnoses or treatment records, leading to denial. The Board found the evidence persuasively weighed against all claims, and the benefit-of-the-doubt doctrine was not applicable.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240618-448833

Full Decision Text

Citation Nr: A25005724
Decision Date: 01/23/25 Archive Date: 01/23/25

DOCKET NO. 240618-448833
DATE: January 23, 2025

ORDER

Entitlement to service connection for a right knee disability has been withdrawn.

Entitlement to service connection for a right hip disability has been withdrawn.

Entitlement to service connection for a right ankle disability has been withdrawn.

Entitlement to service connection for a left foot disability, to include painful neurovascular bundle, and calluses, to include as secondary to a service-connected left knee disability, is denied.

Entitlement to service connection for a low back disability is denied.

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

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

Entitlement to service connection for a respiratory disability, to include pleurisy, bronchitis, and lung cancer, is denied.

FINDINGS OF FACT

1. During a September 2024 hearing before the Board of Veterans' Appeals (Board), the appellant unambiguously, and with a full understanding of the consequences of doing so, withdrew the appeal of his claims for entitlement to service connection for right knee, right hip, and right ankle disabilities.

2. The appellant does not have current diagnosis of left foot neurovascular bundle and has not had a diagnosis at any time during or approximate to the pendency of the claim. The evidence persuasively weighs against a finding that the appellant's left foot pain causes functional impairment of earning capacity.

3. The evidence persuasively weighs against a finding that the appellant's left foot calluses are proximately due to his service-connected left knee disability.

4. The appellant does not have current diagnoses of a low back disability, a left ankle disability, a left hip disability, or a respiratory disability and has not had diagnoses at any time during or approximate to the pendency of the claims.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to service connection for a right knee disability by the appellant are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of entitlement to service connection for a right hip disability by the appellant are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for withdrawal of entitlement to service connection for a right ankle disability by the appellant are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for entitlement to service connection for a left foot disability, to include as secondary to a service-connected left knee disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for entitlement to service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for entitlement to service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for entitlement to service connection for a respiratory disability, to include pleurisy, bronchitis, and lung cancer, 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 appellant served on active duty in the United States Army from June 1953 to May 1955.

Procedural History

This matter comes before Board on appeal from a May 2024 rating decision of VA's Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which, inter alia, denied entitlement to service connection for a right knee disability, a right hip disability, a right ankle disability, a low back disability, a left hip disability, a left ankle disability, a left foot disability, and a respiratory disability. The appellant's VA Form 10182, notice of disagreement (NOD), was received by VA in
3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the United States Army from June 1953 to May 1955.

Procedural History

The appellant testified before a Veterans Law Judge (VLJ) in September 2024; a transcript of that proceeding is associated with the claims file.

Applicable Evidentiary Windows

As the appellant selected the Hearing Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, evidence submitted by the appellant or his or her representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant 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. See also Cook v. McDonough, 36 Vet. App. 175 (2023).

Recharacterization of Issue on Appeal

With respect to the appellant's claim of entitlement to service connection for pleurisy, bronchitis, and lung cancer, in order to afford the appellant as much opportunity as possible to substantiate his claim, the claim has been recharacterized as one for a respiratory disability, to include pleurisy, bronchitis and lung cancer, as noted on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of the claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record.).

1. The Appeal of the Claims for Entitlement to Service Connection for a Right Knee Disability, a Right Hip Disability, and a Right Ankle Disability are Withdrawn.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. Appeal withdrawals must include the name of the claimant, the applicable claim number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.205. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issues withdrawn from the appeal.

During the September 2024 Board hearing, the appellant expressed a desire to withdraw the appeal of the denial of the claims of entitlement to service connection for right knee, right hip, and right ankle disabilities. The law provides oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies).

The VLJ who conducted the September 2024 Board hearing clearly identified the withdrawn issues and explained
The law provides oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies).

The VLJ who conducted the September 2024 Board hearing clearly identified the withdrawn issues and explained the consequences of withdrawing the claims. The appellant affirmed his desire to withdraw the claims. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Specifically, the appellant and his representative demonstrated that they understood the consequences of withdrawing the appeal. The transcript of the hearing included the appellant's name and file number. Thus, the Board finds the appellant and his representative explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal of the denial of the claims of entitlement to service connection for right knee, right hip, and right ankle disabilities.

The appellant has withdrawn this appeal as to the above listed claims and done so in manner set out under 38 C.F.R. § 20.205. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the denials of entitlement to service connection for right knee, right hip, and right ankle disabilities, and it is dismissed as to those issues.

2. Entitlement to Service Connection for a Left Foot Disability, to Include as Secondary to a Left Knee Disability.

The appellant contends he has a left foot disability secondary to his service-connected left knee disability. See VA Form 21-526EZ, Fully Developed Claim, March 27, 2024.

Applicable Law

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In making all determinations, the Board must fully consider all the relevant medical evidence as well as lay evidence. Furthermore, the Board 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 appellant's particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).

Finally, when determining whether service connection is warranted, VA is responsible for determining whether the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). The appellant is entitled to the benefit of the doubt when the evidence is in approximate balance. Id.

Analysis

The evidence persuasively weighs against a
lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).

Analysis

The evidence persuasively weighs against a finding that the appellant has a left foot disability, to include painful neurovascular bundle, and calluses related to a service-connected disability.

Regarding the appellant's claimed painful neurovascular bundle of the left foot, the evidence of record persuasively shows the appellant does not have a current diagnosis of neurovascular bundle 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 record is currently devoid of any treatment records containing a diagnosis of neurovascular bundle associated with the appellant's left foot. At the Board hearing, the appellant did not indicate that a medical professional diagnosed him with neurovascular bundle. In fact, the appellant indicated that he diagnosed himself with the condition. See Board Hearing Transcript page (p.) 16, September 10, 2024. Thus, the first Shedden element is not met. See Shedden, 381 F.3d 1163.

Consideration has been given to the appellant's subjective reports of left foot pain. In 2018, the U.S. Court of Appeals for the Federal Circuit held in Saunders v. Wilkie, that a diagnosis is not required to establish entitlement to disability compensation so long as the identified symptomatology results in functional impairment in earning capacity. 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, the relevant medical evidence of record does not demonstrate that the appellant's left foot pain resulted in functional impairment in earning capacity. Additionally, the appellant has not indicated elsewhere in the record that he suffered from any functional impairment in earning capacity due to his left foot pain. In fact, the appellant testified at the September 2024 Board hearing that he engaged in a jail ministry where he ministered to inmates at least three times per week with no mention of left foot pain interfering with his ministry. See Board Hearing Transcript, p. 6, September 10, 2024. In consideration of the evidence of record, it is determined that there is insufficient evidence to find the appellant's left foot pain reached the level of a functional impairment of earning capacity to be considered a disability. Thus, the appellant's reported left foot pain does not qualify as a disability to satisfy the first element of service connection. See Shedden, supra.

Regarding left foot calluses, the appellant satisfies the first element of secondary service connection as the record reflects that he has a current diagnosis of left foot calluses. See Letter Drafted by Dr. F. A. S., Received September 23, 2024. Additionally, the appellant satisfies the second element of secondary service connection as he is currently service connected for left knee synovitis. See Shedden, supra; see also 38 C.F.R. § 3.310.

As to the third element of secondary service connection, nexus, the evidence of record includes one private medical opinion drafted by Dr. F. A. S. in September 2024.

Dr. F. A. S. indicated that she was currently treating the appellant and indicated that the appellant has had chronic foot pain and multiple calluses for several years. See Letter Drafted by Dr. F. A. S., Received September 23, 2024. Dr. F. A. S. further indicated that due to his chronic left knee pain, the appellant has developed multiple calluses and pain associated with his left foot. Id. The opinion is afforded no probative value regarding the nexus element. Dr. F. A. S. did not indicate whether the claims file was reviewed prior to rendering the opinion or support the opinion with adequate rationale. The opinion seemed to be largely based on the appellant's lay assertions and did not adequately address the elements of secondary service connection as outlined in the holding in Spicer v. McDonough. Thus, the opinion is afforded no prob
Letter Drafted by Dr. F. A. S., Received September 23, 2024. Dr. F. A. S. further indicated that due to his chronic left knee pain, the appellant has developed multiple calluses and pain associated with his left foot. Id. The opinion is afforded no probative value regarding the nexus element. Dr. F. A. S. did not indicate whether the claims file was reviewed prior to rendering the opinion or support the opinion with adequate rationale. The opinion seemed to be largely based on the appellant's lay assertions and did not adequately address the elements of secondary service connection as outlined in the holding in Spicer v. McDonough. Thus, the opinion is afforded no probative value as it relates to the nexus element. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295.

There is no other medical opinion of record addressing the appellant's claim on a secondary basis. As such, the evidence of record persuasively weighs against finding that the appellant's left foot calluses are secondary to his service-connected left knee disability.

The appellant believes that his left foot calluses are proximately due to or aggravated beyond its natural progression by a service-connected left knee disability. The appellant in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the appellant in this case because the record does not show that the appellant has the skills or medical training to make such a determination. Jandreau, 492 F.3d 1377 n.4; see also Kahana, 24. Vet. App. 428.

Consequently, the Board gives more probative weight to the evidence of record demonstrating no probative medical opinions linking the appellant's left foot calluses to his service-connected disability.

Based on the foregoing, the Board finds the evidence persuasively weighs against the claim and the benefit-of-the-doubt doctrine is not for application. Accordingly, service connection for a left foot disability, to include painful neurovascular bundle, and calluses, is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 781-82; 38 C.F.R. § 3.102.

3. Entitlement to Service Connection for a Low Back Disability, a Left Hip Disability, a Left Ankle Disability, and a Respiratory Disability.

The appellant contends he has a low back disability, and a left hip disability, secondary to his service-connected left knee disability. See VA Form 21-526EZ, Fully Developed Claim, March 27, 2024.

The appellant also contends he has a left ankle disability related to a left ankle injury incurred during service. See VA Form 21-526EZ, Fully Developed Claim, March 27, 2024. In the alternative, the appellant contends his left ankle disability is secondary to his service-connected left knee disability. See Board Hearing Transcript, September 10, 2024.

Lastly, the appellant contends he has a respiratory disability, to include pleurisy, bronchitis, and lung cancer, related to service, to include exposure to fuel and fumes. See VA Form 21-526EZ, Fully Developed Claim, March 27, 2024.

Applicable Law

Service connection may also be established on a secondary basis. 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. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer, 61 F.4th 1365. Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected
basis. 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. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer, 61 F.4th 1365. Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id.

Finally, when determining whether service connection is warranted, VA is responsible for determining whether the evidence persuasively favors one side or the other. Lynch, 21 F.4th 781-82. The appellant is entitled to the benefit of the doubt when the evidence is in approximate balance. Id.

Analysis

The appellant does not have a current diagnosis associated with the low back, left hip, left ankle, or a respiratory disability and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky, 26 Vet. App. 294; McClain, 21 Vet. App. 321.

Regarding the appellants low back, left hip, and left ankle, the record is currently devoid of any treatment records containing a diagnosis associated with the appellant's low back, left hip, or left ankle. At the Board hearing, the appellant did not indicate that a medical professional diagnosed him with a specific condition related to his low back, left hip, or left ankle. See Board Hearing Transcript, September 10, 2024.

Consideration has been given to the appellant's subjective reports of low back pain, left hip pain, and left ankle pain. In 2018, the U.S. Court of Appeals for the Federal Circuit held in Saunders v. Wilkie, that a diagnosis is not required to establish entitlement to disability compensation so long as the identified symptomatology results in functional impairment in earning capacity. 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, the relevant medical evidence of record does not demonstrate that the appellant's low back pain, left hip pain, or left ankle pain resulted in functional impairment in earning capacity. Additionally, the appellant has not indicated elsewhere in the record that he suffered from any functional impairment in earning capacity due to his low back pain, left hip pain, or left ankle pain. In fact, the appellant testified at the September 2024 Board hearing that he engaged in a jail ministry where he ministered to inmates at least three times per week with no mention of low back pain, left hip pain, or left ankle pain interfering with his ministry. See Board Hearing Transcript, p. 6, September 10, 2024. In consideration of the evidence of record, it is determined that there is insufficient evidence to find the appellant's low back pain, left hip pain, or left ankle pain reached the level of a functional impairment of earning capacity to be considered a disability. Thus, the appellant's reported low back pain, left hip pain, and left ankle pain do not qualify as a disability to satisfy the first element of service connection. See Shedden, supra.

Regarding the appellant's claimed respiratory disability, he indicated at the September 2024 Board hearing that he was diagnosed and treated for lung cancer, pleurisy, and bronchitis. See Board Hearing Transcript, September 10, 2024. The current record is devoid of any treatment records indicating that the appellant had a current diagnosis of a respiratory disability at any time during the pendency of the claim or recent to the filing of the claim. The VLJ who conducted the September 2024 Board hearing informed the appellant of his right to associate new evidence regarding his claims following the hearing. However, the appellant did not associate any records indicating that he was ever diagnosed with a respiratory disability despite testifying that he has received substantial treatment for his claimed disabilities.

Congress specifically limits entitlement for service-connected disease or injury to cases where such
diagnosed and treated for lung cancer, pleurisy, and bronchitis. See Board Hearing Transcript, September 10, 2024. The current record is devoid of any treatment records indicating that the appellant had a current diagnosis of a respiratory disability at any time during the pendency of the claim or recent to the filing of the claim. The VLJ who conducted the September 2024 Board hearing informed the appellant of his right to associate new evidence regarding his claims following the hearing. However, the appellant did not associate any records indicating that he was ever diagnosed with a respiratory disability despite testifying that he has received substantial treatment for his claimed disabilities.

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a current diagnosis of a disability, service connection for that disability cannot be established, and the appellant's claim for a low back disability, a left hip disability, a left ankle disability, and respiratory disability must be denied. Romanowsky, 26 Vet. App. 293; McLain, 21 Vet. App. 321; 38 C.F.R. § 3.303.

Based on the foregoing, the Board finds the evidence persuasively weighs against the claims and the benefit-of-the-doubt doctrine is not for application. Accordingly, service connection for a low back disability, a left hip disability, a left ankle disability, and respiratory disability is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 781-82; 38 C.F.R. § 3.102.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. McDuffie, 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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