Citation Nr: 1751926 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 15-15 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability as a residual of a left ankle fracture. 2. Entitlement to service connection for a left leg disability as a residual of a left ankle fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled to appear a videoconference hearing before the Board on September 25, 2017. On September 16, 2017, he contacted VA and stated that he was unable to attend the hearing due to declining health. The Board finds that the Veteran has withdrawn his request for a hearing in accordance with 38 C.F.R. § 20.703(e) (2017) and will proceed with a decision in this case without a hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A chronic left knee disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service. 2. A chronic left knee disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service. CONCLUSIONS OF LAW 1. A chronic left knee disability was not incurred in or aggravated by active military service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. A chronic left leg disability was not incurred in or aggravated by active military service. 38 U.S.C. § 1101; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that service connection is warranted for a left knee and left leg disability as they are residuals of an in-service left ankle fracture. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record establishes the first two elements of service connection. The Veteran was diagnosed with arthralgia of the left leg at a March 2013 VA examination, as well as arthritis of the left knee. An in-service injury is also present. Service treatment records document a simple fracture of the Veteran's left ankle was incurred in November 1951. The Veteran was treated with a walking cast and returned to duty on November 23, 1951. The first two elements of service connection are therefore demonstrated. With respect to the third element of service connection, a link between the current knee and leg disabilities and active duty, service and post-service records do not support the claim. Service records do not document any injuries, complaints, or treatment of a chronic knee or leg disorder other than the left ankle fracture. The Veteran's lower extremities were also normal at the November 1954 separation examination. With respect to the post-service records, there are no complaints or findings specifically pertaining to the left knee or leg until many years after the Veteran's discharge from active service. The earliest evidence of a knee or leg condition dates from April 2004, 50 years after discharge, when the Veteran complained of joint pain and stiffness especially in his knees during an evaluation at the VAMC. The Veteran has received treatment for a right knee disability, including X-rays, an April 2011 MRI, and physical therapy sessions in July 2011 and August 2014, but his medical records are negative for any specific complaints or treatment related to the left knee or leg other than the general complaints of bilateral knee pain in April and May 2004. This evidence weighs against a finding that the Veteran incurred a chronic left knee or leg disability during service or due to the in-service ankle fracture. Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. In this case, arthritis of the left knee was not diagnosed until the March 2013 VA examination, almost 60 years after the Veteran's active service. Therefore, service connection on a presumptive basis for arthritis as a chronic disease is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). There is also no competent medical evidence in favor of the claim for service connection. The Veteran has not submitted any medical opinions or treatment records supporting his claim, and the only medical opinion of record, that of the March 2013 VA examiner, weighs against the claim. After reviewing the claims file (including the Veteran's statements), and examining the Veteran, the March 2013 VA examiner concluded that the Veteran's left knee and leg conditions were not due to active service and the November 1951 left ankle fracture. The VA examiner noted that the Veteran's in-service injury was a simple ankle fracture, service records made no mention of left knee or leg damage, and current X-rays only indicated mild arthritis considered comparatively benign for someone of the Veteran's age. The VA examiner found that the nature of the Veteran's original injury and current disability was not consistent with a service-related etiology. Thus, the VA examiner concluded that it was less likely than not that the Veteran's claimed disabilities were related to any incident of active service. Service connection is also possible for certain chronic disabilities, such as arthritis, under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker, 708 F.3d at 1331. The Veteran's knee arthritis is a chronic disability under 38 C.F.R. §§ 3.307 and 3.309, but he has not reported a history of continuous symptoms since service. In his September 2013 notice of disagreement and April 2015 substantive appeal, the Veteran reported that he incurred tendon damage in the left leg and knee at the time of the left ankle fracture which eventually progressed to arthritis. These statements indicate the more recent onset of symptoms related to the left knee. As there is no competent or credible reports of a continuity of symptoms in the left knee leg since service and service connection under 38 C.F.R. § 3.303(b) is not warranted. The Board has also considered the Veteran's statements that his current knee and leg disabilities are related to a left ankle fracture during service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of symptoms and the nature of the initial injury, but finds that his opinion as to the cause of the pain simply cannot be accepted as competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The Board also notes that the Veteran characterizes his original ankle fracture as quite severe, stating in his substantive appeal that the left leg was "essentially shattered with tendon damage" and required a cast of his entire left leg. This account is inconsistent with the service treatment records which only document a "simple" ankle fracture, treated initially with an ACE bandage and walking cast, and normal lower extremities at separation. In any event, the Veteran is not competent to provide a medical opinion linking his current left knee and leg disabilities to service and his statements are of little probative value regarding a nexus between the current disabilities and in-service injury. In sum, the post-service medical evidence of record shows that the first evidence of the claimed disabilities was many decades after the Veteran's separation from active duty service. In addition, there is no competent medical evidence that the Veteran's left knee and leg disabilities are related to active duty and the November 1951 left ankle fracture. The Board has considered the Veteran's statements, but finds that the lay evidence in support of the claims is clearly outweighed by the medical evidence against them, including the March 2013 VA medical opinion. As the record does not establish a nexus between the claimed disabilities and military service, the Board concludes that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a left knee disability as a residual of a left ankle fracture is denied. Entitlement to service connection for a left leg disability as a residual of a left ankle fracture is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs