Citation Nr: 1803751 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 10-06 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for arthritis of the right foot, to include as secondary to a distinct right foot disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a right foot disability. 3. Entitlement to service connection for a low back disability, to include as secondary to a right foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to June 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran appeared at a Board hearing before a Veterans Law Judge. A transcript of that hearing is in the claims file. That Veterans Law Judge is no longer employed by the Board. The Board provided notice to the Veteran of this and provide an opportunity for another Board hearing. The Veteran declined another Board hearing as noted in an October 2017 response. This case was previously before the Board in January 2013, at which time it was remanded for further development. As the requested development has been completed, no further action to ensure substantial compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran is service-connected for post traumatic neuroma of the right foot, status post-surgical removal and related scar. The foot issue listed on the title page and discussed in this decision does not address these two disabilities. FINDINGS OF FACT 1. The July 1976 report of medical examination for enlistment notes pes planus, "no pain, no pronation." 2. The noted pes planus did not increase in severity during his active service. 3. The weight of the competent evidence does not show that the Veteran has been diagnosed with arthritis of the right foot. 4. The weight of the competent and probative evidence is against a finding that the Veteran's right knee disability had its onset during military service or is otherwise related to such service. 5. The weight of the competent and probative evidence is against a finding that the Veteran's low back disability had its onset during military service or is otherwise related to such service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability of the right foot, to include arthritis, have not been met. 38 U.S.C. §§ 1131, 1153, 5107 (2012); 38 C.F.R. §3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to provide claimants with notice and assistance in substantiating a claim. The VA provided the Veteran with notice letters in May 2009 and June 2009. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran was afforded VA examinations in March 2017. Given the above, the Board will proceed to the merits of the appeal. Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2017). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, such as arthritis, if the disease becomes manifest to a compensable degree within one year after service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Right Foot The Veteran contends that he has arthritis in his right foot due to a surgery he had while in-service. A report of medical examination in July 1976 documents the Veteran having pes planus with no pain or pronation. He did not report any problems in an accompanying report of medical history. A February 1978 report of medical examination noted normal feet. Similarly, the accompanying report of medical history reflects that the Veteran marked no foot trouble. In this case, the Board finds that the Veteran's pre-existing pes planus did not increase in severity during service. This finding is supported by his service treatment records and separation examination that are silent for complaints and treatment of pes planus. The Board notes that the Veteran's foot problems were well documented as he had to have surgery for his post traumatic neuroma and no more references were made to his pes planus. Additionally, after more than forty years from separation, the Veteran was still only noted to have mild pes planus. The Veteran has also not asserted that his pre-existing pes planus was aggravated by service. The evidence shows that throughout service and for years thereafter, it was mild and not disabling. As the Veteran's noted pes planus had no pain or pronation upon entrance and the separation examination report reveals a normal foot and the Veteran did not report any foot trouble, the Board finds that the evidence weighs against a finding that the pes planus increase during the Veteran's active service. Thus, the Board finds that presumption of aggravation does not apply and service connection is not warranted on this basis. Other than pes planus, a report of medical history notes a foot operation in November 1977. 9/21/1994 STR, at 28-31, 32-35. The Veteran had surgery on his right foot for post-traumatic neuroma. The etiology was believed to be from an injury resulting from a wrench being dropped on it. 9/21/1994 STR-Medical, at 15, 17 A medical note in September 2002 shows that the Veteran complained of cramping pain when wearing shoes. He denied worsening of pain and numbness or tingling. 1/4/2010 Medical Treatment Records-Government Facility, at 8. At his hearing in July 2011, the Veteran stated that during a march in a mountainous region, he stepped on a rock and fell down. He injured his right foot and developed neuroma. He had surgery in 1977. This has caused him chronic pain and problems since that date. 7/19/2011 Hearing Testimony, at 3, 9. The Veteran was afforded a VA examination in March 2017. As noted above, his history includes being service connected for his right foot/toe neuroma. He had a neuroma in his right toe region and had it removed in November 1977. He reported that it still bothered him when he walked for long periods of time and with the foot elevated and stretched. He had no further surgery and no current neuroma was present. His scar was well healed. He was noted to have mild pes planus, minimal hallux valgus, calcaneal and Achilles spurs. He was not found to have significant degenerative changes. X-rays were performed at examination. The examiner found that according to x-rays taken at examination, the Veteran did not have arthritis in his right foot. 3/15/2017 C&P Examination, DBQ Medical Opinion. The Board finds that service connection for right foot arthritis is not warranted. The Veteran was not found to have a current disability based on the competent evidence of record. Based on the relevant medical and lay evidence, the Board finds that a current, chronic disability does not exist. In doing so, the Board again notes that service connection has already been established for post traumatic neuroma of the right foot, status post-surgical removal, and tender surgical scar of the right foot and this decision concerns disabilities of the right foot, other than those. In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present (at any time during the pendency of the claim, see McClain v. Nicholson, 21 Vet. App. 319, 323 (2007)) disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim or in near proximity to the filing thereof. McClain, 21 Vet. App. at 323. The Board finds the Veteran is competent to report his assertions regarding potential exposures and symptoms. 38 C.F.R. § 3.159(a)(2). However, the Board finds arthritis is of a complex nature that is beyond lay observation and requires further testing and confirmation by an expert. As noted above, the Veteran was documented as having pes planus with no pain or pronation in his July 1976 entrance examination. There were no complaints or treatment documents in service treatment records. Upon discharge, he was noted to have normal feet. His foot operation was also documented, but there were no problems noted regarding his pes planus. At his VA examination in March 2017, he was noted to have mild pes planus. In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding of service connection for a disability of the right foot, to include as secondary to the service-connected right foot disability for post traumatic neuroma of the right foot, status post-surgical removal, and tender surgical scar of the right foot. For all the above reasons, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Right Knee The Veteran contends that he injured his knee in-service when he fell while marching. A report of medical examination in July 1976 documents the Veteran had normal lower extremities. He did not report any problems in an accompanying report of medical history. A February 1978 report of medical examination also noted normal lower extremities. A report of medical history notes a foot operation in November 1977, but no knee complaints. 9/21/1994 STR, at 28-31, 32-35. Service treatment records are silent for complaints or treatment of the right knee. At his hearing in July 2011, the Veteran stated that he injured his knee and back at the same time that he injured his foot in 1977. He continued to have problems over the years. He was told that he had an impact injury during VA treatment. He conveyed that during a march in a mountainous region, he stepped on a rock and fell down. He stated that he had treatment through private doctors after getting out of service. He began getting treatment at the VA about a year and a half prior to the hearing. 7/19/2011 Hearing Testimony at, 5, 6, 8, 9, 10 In August 2011, the Veteran reported to his doctor that he fell and hurt his right knee when he injured his foot, but that he never had it treated. He developed more pain with activity especially running, kneeling, or climbing stairs. He was found to have symptomatic post-traumatic arthritis of right patella and tendinitis of right knee. 8/24/2011 Medical Treatment Record-Non-Government Facility. Treatment records from August 2016 show that the Veteran was fitted with a knee brace. He complained of knee pain and requested x-rays be taken of both knees. 3/15/2017 CAPRI, at 45, 47, 52, 54. The Veteran was afforded a VA examination in March 2017. He reported that his right knee started bothering him in 1977. He had pain intermittently since then. He reported popping and grinding of the knee. There was no history of surgeries. He occasionally used a brace. X-rays taken at examination confirmed that the Veteran had bilateral patellofemoral osteoarthritis. The examiner determined that the right knee disability was less likely than not incurred in or became manifest during service. It was explained that the Veteran was not seen or diagnosed with any right knee condition while in-service. He was also not seen for right knee pain until 2011. Per the current examination and x-ray results, he had mild arthritis of the bilateral knees. This was due to age-related changes. It was also determined that the right knee disability was less likely than not caused or aggravated by the Veteran's service-connected right foot disability. It was explained that the Veteran had mild bilateral degenerative arthritis of the knees due to normal age-related changes. The disability did not appear until recent years. His foot condition in no way had any influence on causing these changes as he had a normal gait. 3/15/2017 C&P Examination, DBQ medical opinion. In the present case, the evidence fails to demonstrate that the Veteran has established a nexus between his claimed knee disability and active service, nor does it show a continuity of symptomatology. In this case, the Veteran has stated that he began feeling pain in-service about 1977. However, the Board finds that the totality of the evidence does not support a finding of continuity of symptomatology. There were no complaints or treatment in-service. There was also no documentation of right knee problems upon separation. The first instance of treatment did not take place until 2011, which is over thirty years after separation. The VA examiner also found that service treatment records did not provide relevant evidence to support his current disability. The passage of many years between the Veteran's separation from active service and diagnosis or documented treatment, while not dispositive, may be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, here, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As noted, the Board finds multiple pieces of evidence to be probative and weigh against a finding of continuity. These included the many years between separation and disability, in addition to normal findings and denial of relevant complaints upon separation. Additionally, the evidence does not demonstrate that the arthritis of the right knee manifested to the requisite degree within one year of service separation. Accordingly, the chronic disease presumptive provisions do not apply in this case. 38 C.F.R. § 3.307. Given the above, a medical nexus opinion is needed to establish service connection in this case. As explained below, the medical evidence is against such a nexus in this case. After a complete review of his the claims file, the March 2017 examiner determined that the disability was age related. Additionally, the evidence did not support a right knee disability related to service both directly or secondary. Moreover, no other competent medical evidence refutes that opinion. For these reasons, the 2017 VA opinion is deemed highly probative and deserving of significant weight. In this regard, the Board notes the examiner performed a physical examination, recorded a detailed medical history, reviewed diagnostic testing (x-rays), and provided a clear rationale. The Board recognizes the Veteran's belief that his right knee disability is due to active service. In this regard, lay witnesses are competent to opine as to some matters of etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the claimed disability involves internal medical processes that extend beyond immediately observable cause-and-effect relationships that are of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the lay statements as to etiology in this case cannot serve to enable an award of service connection here. For all the above reasons, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). Lower Back The Veteran contends that his low back disability is due to an injury suffered in active service. A report of medical examination in July 1976 documents the Veteran having a normal spine and musculoskeletal system. He did not report any problems in an accompanying report of medical history. A February 1978 report of medical examination also documented a normal spine and musculoskeletal system. A report of medical history did not note back problems and the Veteran denied having recurrent back pain. 9/21/1994 STR, at 28-31, 32-35. Service treatment records show that the Veteran was assessed with a lumbosacral muscle strain in February 1977. 9/21/1994 Medical Treatment Records-Government Facility, at 3. Medical records from April 2009 indicate that the Veteran had denied lower back pain at his last visit in January 2009, but did have some at that visit. In June 2009, he reported persistent low back pain for about eight months with radiation inguinal area associated with numbness and tingling in the left buttock area. He reported that he had a fall a year and half ago after right foot cramps secondary to surgery in 1977. He was found to have an eccentric disc bulge protruding at the L4-5 level. There was also suggestion of annular tears of the discs at the L2-3, L3-4, and L5-S1 levels. 7/16/2009 Medical Treatment Records-Government Facility, at 1-2, 5, 9. At his hearing in July 2011, the Veteran stated that he injured his knee and back at the same time that he injured his foot in 1977. He continued to have problems over the years. He went to the pain clinic for epidural shots every three to four months. He stated that he had treatment through private doctors after getting out of service. He began getting treatment at the VA about a year and a half prior to the hearing. 7/19/2011 Hearing Testimony at, 5-7. The Veteran was afforded a VA examination in March 2017. His diagnosis included degenerative arthritis of the lumbar spine and lumbar disc protrusion. He reported that his back was hurt at the same time as his foot. He was told that when they fixed his foot, that his knee and back would align themselves. His back really started bothering him in 1981. He reported symptoms of numbness/tingling that radiated from the back down the left leg into the left thigh. It was constant. He also felt leg weakness. He used a cane. He had injections and Tramadol that were not very helpful. He was not taking anything at the time. There was no report of surgeries. The examiner provided a negative nexus opinion. It was explained that the Veteran was only seen once in the military in February 1977 where he was noted to have an acute back strain with the diagnosis of LS muscle strain. He was never seen again. This was a common acute back problem that commonly resolves over a short period of time. The Veteran was not seen again until about 2009 after a fall for his back disability. At that time he was diagnosed with a disc problem. Therefore, as the Veteran was only seen one time for an acute back problem with no problem of chronicity established after that for his back pain until around 2009, his current back disability was less likely than not incurred in or manifested during service. 3/15/2017 C&P Examination, DBQ medical opinion. The examiner also gave a negative nexus opinion for secondary service connection. It was explained that the Veteran had a neuroma removed from his right 5th metatarsal in 1977. This did not cause any change to his gait or any significant pain per extensive review of his medical records. It appeared that his significant back injury was due to a fall in 2009. This would not have been due to his foot problem as he did not appear to have any significant, if any at all, residuals. Therefore, the Veteran's current low back disability is less likely than not caused or aggravated by the Veteran's service-connected right foot disability. Id. In the present case, the evidence fails to demonstrate that the Veteran has established a nexus between his claimed knee disability and active service, nor does it show a continuity of symptomatology. In this case, the Veteran has stated that he began feeling pain in-service since his injury in February 1977. However, the Board finds that the totality of the evidence does not support a finding of continuity of symptomatology. Upon separation, the Veteran denied having recurrent back pain and there was no documentation of spinal or musculoskeletal problems. He did not begin receiving treatment until 2009, which is over thirty years after separation. It was also documented that he sought treatment after a fall he had taken. The VA examiner also found that service treatment records did not provide relevant evidence to support his current disability as it was an acute back problem in-service. The passage of many years between the Veteran's separation from active service and diagnosis or documented treatment, while not dispositive, may be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, here, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As noted, the Board finds multiple pieces of evidence to be probative and weigh against a finding of continuity. These included the many years between separation and disability, in addition to normal findings and denial of relevant complaints upon separation. Additionally, the evidence does not demonstrate that the degenerative arthritis of the spine manifested to the requisite degree within one year of service separation. Accordingly, the chronic disease presumptive provisions do not apply in this case. 38 C.F.R. § 3.307. Given the above, a medical nexus opinion is needed to establish service connection in this case. As explained below, the medical evidence is against such a nexus in this case. After a complete review of his the claims file, the March 2017 examiner determined that the evidence did not support a low back disability related to service both directly or secondary. Moreover, no other competent medical evidence refutes that opinion. For these reasons, the 2017 VA opinion is deemed highly probative and deserving of significant weight. In this regard, the Board notes the examiner performed a physical examination, recorded a detailed medical history, reviewed diagnostic testing (x-rays), and provided a clear rationale. As noted above, in this case, the claimed disability involves internal medical processes that extend beyond immediately observable cause-and-effect relationships that are of the type that the courts have found to be beyond the competence of lay witnesses. Thus, the lay statements as to etiology in this case cannot serve to enable an award of service connection here. For all the above reasons, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER Service connection for arthritis of the right foot, to include as secondary to a distinct right foot disability is denied. Service connection for a right knee disability, to include as secondary to a right foot disability is denied. Service connection for a low back disability, to include as secondary to a right foot disability is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs