Citation Nr: 18146261 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 12-27 037A DATE: October 31, 2018 ORDER Service connection for chronic bronchitis is denied. Service connection for a left ankle disorder is denied. Service connection for a bilateral knee disability is denied. Service connection for a lumbar spine disorder is denied. Service connection for a cervical spine disorder is denied. FINDINGS OF FACTS 1. The Veteran’s chronic bronchitis is not related to his military service. 2. The Veteran’s left ankle is not shown to have either begun during or been otherwise caused by his military service or to have been either caused or aggravated by his service connected hammer toes. 3. The Veteran’s bilateral knees disorder is not shown to have either begun during or been otherwise caused by his military service or to have been either caused or aggravated by his service connected hammer toes. 4. The Veteran’s lumbar spine disorder is not shown to have either begun during or been otherwise caused by his military service or to have been either caused or aggravated by his service connected hammer toes. 5. The Veteran’s cervical spine disorder is not shown to have either begun during or been otherwise caused by his military service or to have been either caused or aggravated by his service connected hammer toes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic bronchitis are not satisfied. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to August 1984, from June 1985 to November 1985, and from May 1986 to December 1988. This matter is on appeal from a November 2011 rating decision and was previously remanded in September 2016. The Board notes that pursuant to the September 2016 Board remand VA scheduled new VA examinations at the Kansas City VA treatment facility to address all of the Veteran’s current claims. However, because the Veteran failed to respond, the examinations were canceled. He later contacted VA and indicated that he was willing to attend any examination located anywhere other than the Kansas City medical center. After being scheduled a new examination in Leavenworth, the Veteran refused to attend and requested another location. He stated that he wanted contracts examination to non-VA locations. In April 2017, VA was notified that the Veteran had refused to schedule an examination with the contractor. Since that time, the Veteran’s representative has written that he had spoken with the Veteran and the Veteran now understood the importance of attending a VA examination. The representative asserted that the Veteran had been reluctant to attend an examination because of bad experiences at earlier VA examinations. The representative asserted that this should constitute good cause for the Veteran’s absences and requested that new examinations be scheduled. The Board disagrees. 38 C.F.R. § 3.655 provides that examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. What is clear in these examples is that factors outside a veteran’s control are at work. This is not the case here where the Veteran freely decided not to report. It is noted that the Veteran has been informed that he is free to submit medical evidence to support his claim, and nothing has stopped him from seeking a private medical opinion. VA is charged with equitably distributing a finite set of resources across the veteran population of this country and many Veteran’s claims currently await the provision of physical examinations. To continually reschedule a Veteran for examinations when that Veteran has habitually failed to report to scheduled examinations deprives other veterans of the opportunity to have their examinations. Here, the Board concludes that the Veteran has not presented good cause for his failed to report to his scheduled VA examinations. In such an instance, VA regulations direct that the Veteran’s claim be rated on the evidence of record. It is important to note that the Veteran was specifically advised in the 2016 Board decision of the potentially adverse consequences for failing to attend a scheduled examination. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Bronchitis The Veteran asserts that he developed bronchitis as a result of his military service. Specifically, when he contends that when he was first assigned to his unit in 1986, he was exposed to asbestos from the ceilings when he and a fellow service member were required to help remove asbestos without masks. Soon after, he reports that he began to exhibit bronchitis on a regular basis. He recalled having difficulty breathing during the summer time. While he tried to tell the VA physician that it was bronchitis, he was told that it was merely allergies. Service treatment records show that the Veteran was treated for several upper respiratory infections. However, his separation examination dated December 1988 found no abnormalities regarding his lungs and chest. Post-service treatment records show the use of albuterol inhaler for bronchitis. At a December 2010 VA examination, the Veteran reported experiencing chronic bronchitis, with symptoms that included difficulty breathing, coughing up phlegm, and chest congestion. He also reported coughing up blood once in December 2009. He also reported having a single episode where he was placed on bed rest for 6 months. Testing revealed that the Veteran’s lung volumes were within normal limits, but that there is a mild decrease in diffusing capacity. The examiner was unable to determine whether his current respiratory condition is related to the in-service respiratory illness. In February 2011, the Veteran was scheduled for a VA examination to assess his respiratory condition. However, he indicated that he did not want to attend the VA examination at the Kansas City VA treatment facility because he felt that the Kansas City VA treatment center made fun of his ailments. In May 2011, the Veteran contacted VA to cancel his examinations. VA treatment records dated April 2012 show that the Veteran was diagnosed with allergic rhinitis, a reactive airway disease. However, there was no medical opinion linking the condition to his in-service respiratory complaints. Other than the Veteran’s lay statements linking his in service respiratory conditions to his post service recurrent bronchitis, there is no objective medical evidence to support a nexus relationship. Because the Veteran lacks the medical training or qualifications to opine on a relationship between the his in service respiratory illnesses and his current chronic bronchitis, his opinion cannot provide the requisite nexus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, medical examinations were scheduled in an effort to assist the Veteran in substantiating his claim, but he failed to report to the examinations. These examinations were scheduled because the evidence of record was insufficient to support the grant of service connection for bronchitis. The medical picture has not changed, and without the nexus element being established, the criteria for service connection have not been met. Accordingly, the claim is denied. 2. Left Ankle The Veteran asserts that his left ankle condition is a result of his service connected hammer toes. Service treatment records show problems with the Veteran’s feet and toes, but do not show any treatment for or diagnosis of a left ankle condition. His separation examination in December 1988 showed no clinical abnormalities regarding his ankle. In VA treatment records from June 2010, the Veteran asserted that he had broken his ankles in a motor vehicle accident in 1987. However, treatment records showed no documentation of broken ankles. A physical examination showed normal range of motion in his ankles. There was no pain to the achilles tendon, and no pain with side to side compression of the calcaneous. In September 2010, the Veteran was scheduled for a VA examination to assess his ankle. However, the Veteran refused the location for the examination and was not present for an evaluation. In October 2010, VA contacted the Veteran to arrange a location closer him, in Springfield. At another VA examination in December 2010, the Veteran indicated that after the motor vehicle accident, which injured his right ankle, he has had to over-compensate, which caused problems with the left ankle. After a physical examination, the VA examiner opined that it was less likely than not that the Veteran’s ankle condition is related to his foot conditions, including his healed fracture deformity of the right second, third, fourth, and fifth metatarsals, bilateral bunion with hallux valgus, right Achilles spur, bilateral hammertoes, left calcaneal spurs, and bilateral pes planus. The examiner indicated that the Veteran has a significant leg length discrepancy, which could have been caused by his femur and tibia-fibula fractures when he was a child, that could be contributing to these conditions. After review of the claims file, the Board finds that service connection for a left ankle disability is not warranted. The Board turns to the probative medical opinion of record, which found that it was less likely that the Veteran’s left ankle disability is related to his service connected hammer toes, and his other (non-service connected) foot conditions. While the Board acknowledges that the Veteran is competent to report pain in his ankle, he is not competent to link his left ankle disorder to his service connected hammertoes because he lacks the medical training and qualification. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Based on the forgoing, the claim for service connection for a left ankle is denied. 3. Bilateral Knees The Veteran contends that he suffers from weakened knees due to his service connected hammer toes. In service treatment records revealed no knee condition or injury. His separation examination dated December 1988 reported no clinical problems with his knees. The Veteran also did not mention any knee problems in his report of medical history. Post service, in September 2010, the Veteran was scheduled for a VA examination to assess his knee. However, the Veteran refused the location for the examination and was not present for an evaluation. In October 2010, VA contacted the Veteran to arrange a location closer him, in Springfield. As a result, he was seen in December 2010 for a VA examination. There, the Veteran indicated that he had experienced pain, swelling, and buckling in his right knee since 1998. He stated that he was told by a physician that it was caused by his ankle problems. With regard to his left knee, he indicated that he twisted and dislocated it during a running formation in service in 1986. As a result, he asserted that he had been fitted into a soft cast and required to attend physical therapy. He stated that it had improved but had started to bother him again after he left service. His left knee started buckling in 2003 and he was told by his physician that it was due to his ankle problems. The condition worsened to a point where he could no longer put weight on it. A 2008 MRI indicated floating bodies and a torn meniscus. He underwent physical therapy in 2006 and was prescribed a knee brace. He was scheduled for surgery in December 2009, which failed to take place. After a physical examination, the examiner opined that the Veteran’s bilateral degenerative joint disease of the knees is most likely not caused by his hammer toes. The examiner noted that the Veteran’s MRI revealed lateral subluxation of the patella and partial thickness cartilage loss of the lateral facet of the patella. There was spurring of the patella femoral joint, mild joint effusion with two loose bodies seen within the joint space, small amount of fluid in the semimembranous collateral ligament bursa and within a popliteal cyst and within the pes anserinus bursa. There was also partial chronic tear of the lateral collateral ligament area. The examiner opined that none of these conditions were caused by the Veteran’s hammer toes. Instead, the examiner suggested that the cause of the Veteran’s degenerative joint disease of the knees (osteochondromatosis or effusion) was most likely genetic predisposition, strenuous physical activity, and/or compensating for ankle and other foot conditions. The Veteran’s left knee effusion with lateral collateral tear and loose bodies were most likely secondary to trauma. Given his significant leg length discrepancy, the examiner felt that it could be a contributing factor to his bilateral knee conditions. A January 2012 MRI result of the right knee show suprapatellar joint effusion. By October 2014, there was mild osteoarthritic changes in the right knee. A July 2014 MRI result showed that the Veteran’s left knee the medial and lateral meniscus is intact. There was no bony contusion, stress fracture or osteonecrosis was seen. There was however, a moderate to large joint effusion and a sizable popliteal cyst. In sum, the Veteran suffers from moderate degenerative changes that affect all 3 compartments of the left knee. After review of the evidence, the Board finds that service connection for a bilateral knee condition is not warranted. Other than the December 2010 medical opinion, finding a negative nexus between the Veteran’s bilateral knee disability and his service connected hammer toes, there is no positive medical opinion in support of the Veteran’s claim. As noted, the Board remanded the Veteran’s claim to obtain such an opinion, but the Veteran repeatedly declined to appear for a VA examination. As such, the Board was unable to further assist him with substantiating his claim. Furthermore, there is no showing that his degenerative joint disease of the bilateral knees manifested to a compensable level within one year of discharge. While the Veteran may have complained of a left knee pain in service, his separation examination showed no outstanding problems. The Board has considered the lay evidence of record, to include the Veteran’s lay assertions that his knee disability is related to his service connected hammer toes. Though he is competent to report that he observed knee pain in service, he is not competent to report that the knee pain resulted in his current diagnosis or was the onset of his current condition. The Veteran has not been shown to have the medical training or expertise to be qualified to render medical conclusions. Layno, 6 Vet. App. at 469. As there is no indication that the Veteran has the medical expertise to render an opinion on the nature or etiology of his bilateral knee condition, the Board finds that the available medical evidence of record is entitled to greater probative weight than the lay statements of record. Accordingly, the claim is denied. 4. Back The Veteran contends that his back problems are due to his service connected hammer toes. Service treatment records show that the Veteran was treated for back pain and noted complaints of muscle spasms below the shoulder blades. However, by the time of his separation from service, a physical examination revealed no clinical abnormalities regarding his spine. Post service, VA treatment records show that the Veteran complained of pain in the lower right back. In September 2010, the Veteran was scheduled for a VA examination. However, he refused the location for the examination and was not present for an evaluation. In October 2010, VA contacted the Veteran to arrange a location closer him, in Springfield. At a December 2010 VA examination, the VA examiner found that the Veteran had degenerative joint disease of the thoracic spine at all levels, spina bifida occulta at S1, intervertebral disc syndrome most likely involving bilateral peroneal and tibial nerves. He opined that the Veteran’s hammer toes do not usually cause degenerative joint disease or degenerative disc disease of the spine. The cause of these conditions is most likely due to a combination of genetic predisposition, strenuous physical activity, prior trauma, and/or compensating for ankle and other foot conditions. Intervertebral disc syndrome most likely involving bilateral peroneal and tibial nerves, is most likely secondary to his back condition. Motor and sensory deficits on which this diagnosis is based, may in fact be caused by prior bilateral ankle injuries and not to the lumbar spine. The Veteran’s spina bifida occulta at S1 is most likely congenital. Additionally, the Veteran’s significant leg length discrepancy, which could have been caused by his femur and tibia-fibular fractures could contribute to his conditions. The Board remanded the Veteran’s claim to provide further clarification to the medical opinion, but the Veteran declined to be scheduled for the examination. Given the probative medical opinion of record, which does not support a conclusion of a nexus between the Veteran’s back and his service connected hammer toes, the Board finds that the Veteran’s claim for service connection for a back disability is denied. Other than the Veteran’s own statement, there is no evidence that shows that his complaint of a low back disability is related to his service connected hammer toes. While the Veteran may be competent to describe symptoms such as back pain, he lacks the medical training and expertise to provide a complex medical opinion such as diagnosing a chronic back disability. See Layno, 6 Vet. App. 465. Thus, the Board assigns the Veteran’s statement no probative weight as to nexus. Thus, in the absence of competent evidence in support of the claim, the claim for service connection for a back disability is denied. 5. Neck The Veteran claims that his cervical spine condition is the result of his service connected hammertoes. Service treatment records show that the Veteran was treated for back pain and noted complaints of neck pain. However, by the time of his separation from service, a physical examination revealed no clinic abnormalities regarding his cervical spine. At an October 2010 VA examination, the Veteran told the examiner that he started having back problems in 2002, even though he was diagnosed with hammertoes several years earlier in 1984. His symptoms included pain and numbness in the upper thoracic spine. In 2003, he sought treatment at a VA treatment facility in Nevada and Missouri. He added that a VA orthopedic surgeon recommended that he have his bilateral foot condition treated in order to correct his posture. The Veteran underwent physical therapy and followed up with VA to receive corrective shoes and inserts twice a year. He stated that in 1988, he attended an airshow in Germany, where he was trampled over by a crowd of people. The crowd had knocked him down and ran on top of his back. After a physical examination, the VA examiner found that the Veteran suffers from degenerative disc disease in C4-5 an C5-6 with bilateral foraminal stenosis. Like the Veteran’s back condition, the examiner found that it was not likely that his service connected hammertoes caused the Veteran’s cervical spine condition. The cause of the condition is most likely due to a combination of genetic predisposition, strenuous physical activity, prior trauma, and/or compensating for ankle and other foot conditions. Given that there is no medically competent evidence or credible lay evidence that the Veteran’s cervical spine disability is caused or related to his service connected hammer toes, the Veteran’s claim for service connection is denied. Here, the only medical evidence of record is the December 2010 VA examination report, which concludes against the Veteran’s claim. Accordingly, the Board concludes that the weight of the evidence is against the Veteran’s claim for service connection for a cervical spine disability and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel