Citation Nr: 18147410 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 14-02 283 DATE: November 6, 2018 ORDER Entitlement to service connection for a left foot condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. REMANDED Entitlement to service connection for a thoracic spine condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any left foot condition. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any left knee disorder. 3. The Veteran’s right knee conditions, diagnosed as arthritis and status post right medial meniscectomy did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a right knee condition, to include chronic arthritis, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from May 1980 to August 1990. Service Connection 1. Entitlement to service connection for a left foot disorder The Veteran contends that he has a left foot condition that began in service or was caused by an injury, event, or disease in service. The question for the Board is whether the Veteran has a current left foot disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any left foot condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The April 2016 VA examiner evaluated the Veteran and determined that he did not have a diagnosis of any left foot disability. Further, despite treatment for a right foot condition, treatment records from June 2011 to June 2015 include ten left foot exams that note a normal left foot. Later records do not identify any diagnosed left foot condition. While the Veteran believes he has a current left foot condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Because the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any left foot condition, service connection for the claimed condition is not warranted. 2. Entitlement to service connection for a left knee condition The Veteran contends that he has a left knee condition that began in service or was caused by an injury, event, or disease in service. The question for the Board is whether the Veteran has a current left knee disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any left knee condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The April 2016 VA examiner evaluated the Veteran and determined that, while he reported a history of subjective symptoms of pain in the left knee, he did not have a diagnosis of any left knee condition. This conclusion was based on July 2009 x-rays showing a normal left knee and an in-person exam that showed no functional impairment of the left knee. The April 2016 examiner also noted the Veteran’s statement that his left knee was fine and did not prevent him from working, while the right knee was causing him trouble. Post service treatment records have recorded the Veteran’s complaints of bilateral knee pain, but contain no evidence of functional impairment related to this pain. They also contain no diagnosis of a left knee condition. The Board notes that a recent decision of the United States Court of Appeals for the Federal Circuit held that pain alone may constitute a disability if it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (2018). However, the Board finds that the Veteran’s pain alone, without associated functional impairment, does not constitute a disability for compensation purposes. See Saunders, 886 F.3d at 1367. Because the Veteran’s pain has not risen to a compensable level and the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any left knee disorder, service connection for the claimed condition is not warranted. 3. Entitlement to service connection for a right knee condition The Veteran contends that his right knee conditions, including osteoarthritis and status post medial meniscectomy began in service, manifested to a compensable degree within one year of separation from service, or were caused by an in-service injury, event, or disease. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has right knee osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Service treatment records (STRs) and post-service treatment records show the Veteran was not diagnosed with arthritis until October 2011, two decades after his separation from service and two decades outside of the applicable presumptive period. The Veteran’s STRs did note treatment for an incident where the Veteran fell off a truck, however, no chronic right knee condition was noted at the time or at any other point before his separation from service or the year following separation. While the Veteran has stated that he has had knee trouble since his time in service, knee x-rays of July 2009 were normal, demonstrating that his arthritis did not begin in service or manifest to a compensable degree within one year of his separation. Furthermore, while the Board notes the Veteran’s multiple statements that his right knee pain started in and continued since service, the July 2009 x-rays show that this pain was not a symptom of arthritis. The Veteran’s documented right knee meniscal tear, now status post right meniscectomy, was also not present in the July 2009 x-rays. As the April 2016 VA examiner noted, post-service treatment records show this injury was caused by a fall around August 2010 and followed by other falls. The lack of evidence of a meniscal tear in July 2009, coupled with the intervening falls, supported the April 2016 VA examiner’s opinion that there was no causal nexus between the Veteran’s active service and his current status post right meniscectomy. While the Veteran is competent to report having experienced symptoms of right knee pain in service and consistently since separation, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms were not caused by arthritis or a meniscal tear. Service connection for arthritis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The April 2016 VA examiner opined that the Veteran’s arthritis is not at least as likely as not related to an in-service injury, event, or disease, including falling off of a truck. The rationale was that the condition was not diagnosed until two decades after separation from service and intervening x-rays were normal. While the Veteran believes his arthritis is related to an in-service injury, event, or disease, including falling off of a truck and landing from parachutes, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for a thoracic spine condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a thoracic spine condition because no VA examiner has opined whether the Veteran’s diagnosed thoracic spine spondylosis manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board notes that the Veteran made a statement to the April 2016 VA examiner which may have been an attempt to withdraw this claim. However, an effective withdrawal requires either a written and signed withdrawal request or a statement on the record at a Board hearing. As the April 2016 statement did not satisfy these requirements, this claim has not been withdrawn. The matter is REMANDED for the following action: 1. Contact the Veteran and inquire whether he wishes to withdraw his claim for service connection for a thoracic spine condition. If he does, explain the requirements for an effective withdrawal in accordance with 38 C.F.R. § 20.204. 2. If the Veteran does not effectively withdraw this claim, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any thoracic spine disability, to include spondylosis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including parachute exercises and falling off a truck. The examiner must also opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must also opine whether it is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel