Citation Nr: 18141183 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-06 877 DATE: October 9, 2018 ORDER Entitlement to service connection for a lower back disability is denied. Entitlement to service connection for a bilateral foot disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for an upper respiratory condition is remanded. FINDINGS OF FACT 1. A lower back disability did not onset due to injury sustained during a period of service and his degenerative arthritis of the lumbar spine was not shown in service or within the first post-service year, has not been continuous since service. 2. The preponderance of the evidence is against finding that a bilateral foot disability began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disability have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1988 to July 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. 1101, 1112, 1113, 1131, 1137; 38 C.F.R. 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C. 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. 3.303(d). 1. Entitlement to service connection for a lower back disability The Veteran contends that his current diagnosed lower back disability, degenerative arthritis of the lumbar spine, was incurred in or is related to active service. The Veteran’s enlistment and separation examination are silent as to any lower back disabilities. The Veteran’s service treatment records (STRs) indicate that he complained of, and was treated for lower back pain in November 1991. The medical evidence of record consists of a May 2014 VA examination. At the time of the examination, the Veteran indicated that he did not specifically injure his back in service, but that he had pain from lifting equipment on the ship. The Veteran further indicated that he had been experiencing stiffness and pain in his lower back for 8 to 9 years. The examiner diagnosed the Veteran with degenerative arthritis of the spine, but indicated that the arthritis was less likely than not incurred in or caused by an in-service injury, event or illness. As rationale, the examiner cited the Veteran’s November 1991 complaint of back pain and noted that there were no subsequent complaints related to the back. The examiner also cited the Veteran’s statements, indicating that his back pain had not started until 9 years prior; more than 10 years after his separation from service. Additionally, the examiner indicated that the Veteran’s weight, at 342 pounds, may account for his back pain. The Board finds that this opinion is probative, as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current lower back disability and injury sustained during a period of the Veteran's service. Additionally, there is no evidence of lower back degenerative joint disease or arthritis in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of arthritis of the lumbar spine within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. 3.303(b), 3.307, 3.309. The Board also notes that the Veteran is not competent to link his lower back disability to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. 3.159. Here, there is no evidence the Veteran has the requisite specialized education, training, or experience to opine as to the etiology of his lower back disability. Accordingly, the claim of entitlement to service connection for a lower back disability must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107 (b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a bilateral foot disability The Veteran contends that he has a bilateral foot disability that is related to active service. However, the Veteran has made no specific contention as to any in-service event or injury in relation to his bilateral foot disability. The Veteran’s STR’s are silent as to any complaint, treatment or diagnosis of any foot disability during service. The only medical evidence of record with regard to this claim are VA treatment records indicating that the Veteran sought treatment for numbness and pain of both feet in July 2011. The treating physician noted that the Veteran indicated that the pain had started 1 year prior. The treatment note indicates that the Veteran had pes cavus, a high arch in both feet. After a review of all the evidence of record, the Board finds that the preponderance of the evidence demonstrates that there was no event, injury, or disease manifesting a bilateral foot disability during active service. As noted above, service treatment records are entirely negative for any symptoms of a foot disability. Moreover, the preponderance of the evidence demonstrates that symptoms of the claimed disorder have not been continuous or recurrent since separation from active service, as evidenced by the Veteran’s statement concerning the onset of his foot pain being one year prior. Therefore, the Board finds that a preponderance of the evidence weighs against the claim for service connection for a bilateral foot disability, and the claim must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107(b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran contends that his bilateral knee arthritis is related to active service. The Veteran’s STRs indicate that he complained of, and was treated for pain in his right knee on two occasions; August 1991 and November 1991. His STRs also indicate that he complained of left knee pain at least once, in November 1991. In this case, the Board finds that a new examination is warranted as to the Veteran’s bilateral knee disability. With regard to the Veteran’s left knee, the Veteran was provided a VA examination in May 2014. While the examiner diagnosed the Veteran with arthritis of the left knee, he did not render an opinion as to the etiology of the Veteran’s left knee. Additionally, while the examiner cited the Veteran’s complaints of right knee pain in service, no mention was made of the Veteran’s complaint of left knee pain in November 1991. Accordingly, on remand, the Veteran should be afforded an examination that addresses the etiology of his left knee disability. With regard to the Veteran’s right knee, in rendering a negative nexus opinion, the May 2014 examiner noted in November 1991 it was indicated that the Veteran had injured his right knee three years prior while playing high school football. Additionally, an August 1991 STR notes the Veteran’s knee injury prior to service, and the Veteran’s contention that the pain persisted since the injury and had progressively gotten worse. See STR Medical, entry dated august 20, 1991. Based on the foregoing, the Board concludes that the medical evidence of record raises the question of whether the Veteran clearly and unmistakably had a right knee disability that preexisted his enlistment into active duty service. Thus, upon remand, the Board also seeks an opinion specifically addressing the question of whether the Veteran's right knee disability clearly and unmistakably preexisted service and, if so, whether the preexisting disability was clearly and unmistakably not aggravated by the Veteran's military service. 2. Entitlement to service connection for an upper respiratory condition is remanded. The Veteran contends that he suffers from an upper respiratory condition that is related to his active service. Specifically, the Veteran contends that his condition was caused by constant inhalation of fumes and fuel during service. The Veteran’s STRs indicate that he was treated on multiple occasions for hemoptysis during service. Post-service treatment records indicate that the Veteran has a diagnosis of chronic obstructive pulmonary disease. See CAPRI, entry dated September 23, 2013. Thus far, no examination or opinion has been provided on this issue. Accordingly, as the record indicates that the Veteran has a current diagnosis that may be associated with active service, a remand seeking such an examination and opinion is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral knee disability. Access to Virtual records and a copy of this REMAND must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinions: a.) Is it at least as likely as not (50% or greater probability) that any diagnosed left knee disability is related to or the result of the Veteran's service? Attention is invited to the November 1991 service treatment record indicating that the Veteran complained of left knee pain. (See STR – Medical). b.) Whether the Veteran has a right knee disability that clearly and unmistakably (obviously or manifestly) existed prior to entrance into service. Attention is invited to the August 1991 service treatment record indicating that the Veteran injured his knee prior to service, and that his knee pain had persisted and become progressively worse. (See STR – Medical). c.) If it is the VA examiner's opinion that the right knee disability clearly and unmistakably preexisted service, was the preexisting disability clearly and unmistakably (obviously or manifestly) not aggravated (not permanently worsened beyond the natural progression) during active service? d.) If the VA examiner concludes that there is no clear and unmistakable evidence that the Veteran's right knee disability existed prior to service and was not aggravated by service, the VA examiner should then provide the following opinion: Is it at least as likely as not (50% or greater probability) that any diagnosed right knee is related to or the result of the Veteran's service? 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s upper respiratory condition. Access to Virtual records and a copy of this REMAND must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinion: Is it at least as likely as not (50% or greater probability) that any diagnosed upper respiratory condition, including chronic obstructive pulmonary disease, is related to or the result of the Veteran's service? Attention is invited to the Veteran’s complaints and treatments of hemoptysis during service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel