Citation Nr: 18149355 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 09-48 943 DATE: November 9, 2018 ORDER Service connection for a left ankle disorder is denied. Service connection for a right ankle disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. REMANDED Entitlement to higher initial ratings for other specified trauma and stressor related disorder and major depressive disorder (formerly anxiety disorder), rated 30 percent disabling prior to January 12, 2016, and 50 percent disabling from that date, is remanded.   FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran does not have current left and right ankle diagnoses or functional impairment due to ankle disability. 2. The most probative evidence is against a finding that the Veteran has current disorders of the left and right knee that had their onset in service or are related to service. 3. The currently diagnosed bilateral knee plica syndrome is a congenital or developmental defect. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 4. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from July 2004 to July 2008. He is in receipt of a Combat Action Badge, which denotes his participation in combat. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in March 2015. A transcript is of record. The claims were remanded by the Board in July 2015 and September 2017. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran seeks service connection for disorders affecting his ankles and knees and reports problems because of jump school, having completed many jumps during which he was carrying heavy gear. His DD Form 214 documents he received a parachutist badge. Regarding ankle problems, the Veteran reports sustaining injuries to both ankles during service; regarding knee problems, he also attributes them to the wear and tear of service, to include long marches with heavy packs. 1. Service connection for a left ankle disorder 2. Service connection for a right ankle disorder Service treatment records corroborate that the Veteran sustained injuries to both ankles during service. The preponderance of the evidence, however, is against the claims for service connection for disorders of the right and left ankles. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). There is no indication from the post-service evidence of record that the Veteran has a disability affecting either ankle. Rather, an October 2008 VA examiner determined that there was insufficient clinical evidence for a diagnosis related to an ankle condition since examination had been normal, and a December 2015 VA examiner determined that the in-service ankle incidents had resolved without residuals. X-rays were normal and the Veteran reported having no functional impairment due to the ankles. In addition, the private and VA treatment records do not contain a diagnosis related to either ankle, or reveal functional impairment associated with the ankle. Without evidence of a current disability affecting the left or right ankles, service connection is not warranted and the claims must be denied. 3. Service connection for a left knee disorder 4. Service connection for a right knee disorder Service treatment records reference complaint of right knee pain in February 2008 and assessment of retropatellar pain syndrome; the Veteran was told to follow up in two weeks if there was no improvement. There is no indication that the Veteran sought any follow up treatment for his right knee and service treatment records are devoid of reference to complaint of, or treatment for, any left knee problems. However, given the Veteran’s receipt of the parachutist badge, the Board will concede that he would have had training that would have impacted both knees. The Veteran was diagnosed with bilateral chondromalacia patella in November 2009 and bilateral medial plica syndrome in January 2013 after magnetic resonance imaging (MRI) of the right knee was normal. The Board notes, however, that a December 2016 MRI showed no injury to the menisci, cruciate ligaments or collateral ligaments; no chondromalacia or articular cartilage of the patellofemoral or femorotibial articulations; and no occult fracture or bone contusion, and that an August 2018 bilateral knee x-ray was normal. The question that remains to be resolved is whether any of the knee disorders diagnosed during the period of the claim are related to service. VA records indicate that in February 2015, the Veteran requested an opinion be added to the January 2013 record, specifically an opinion that the bilateral knee injuries were service-connected. While this request was acknowledged, it was not honored, since the VA surgeon who treated the Veteran in January 2013 indicated that the clinical diagnosis of plica syndrome in the knees is strictly a clinical diagnosis and not able to be verified by objective evidence except by arthroscopic procedure. The VA surgeon went on to say that he could not submit that this was caused by an active duty injury as it is a congenital/vestigial soft tissue remnant and not caused by any trauma mechanism. See March 2015 VA record. This opinion is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Veteran underwent a VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in December 2015, at which time he was diagnosed with right knee retropatellar pain syndrome, resolved; and bilateral plica syndrome. He reported that both knees began to have aches and pains in 2005 along the lower patella and that he did not seek medical care until one year after his discharge. The examiner noted the February 2008 in-service diagnosis of right retropatellar pain syndrome (same as patellar femoral pain) and that the first mention of bilateral knee pain after service was in October 2009. The examiner also noted that a January 2013 MRI was normal and that the Veteran was diagnosed with bilateral plica syndrome at that time. It was the examiner’s opinion that the bilateral knee condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was based on the fact that service treatment records were silent for complaint, evaluation or treatment of a left knee condition and that although service treatment records showed a diagnosis of right knee retropatellar pain syndrome, there was no evidence of residuals. The examiner went on to state that the current claimed condition of bilateral knee pain was first reported in October 2009; that x-rays and MRIs of both knees had not found any abnormalities; and that the Veteran was found to have symptoms clinically consistent with bilateral medial plica syndrome in January 2013. The examiner reiterated what the March 2015 opinion said, and indicated that it was therefore less likely than not that the current diagnosis of bilateral knee plica syndrome is related to active service. The opinion of the December 2015 VA examiner is also afforded high probative value. Id. The preponderance of the evidence is against the claims for service connection for disorders of the left and right knees. The VA examiner specifically indicated that the in-service diagnosis of right knee retropatellar pain syndrome had resolved. Regarding the diagnosed bilateral plica syndrome, the VA surgeon determined that it was unrelated to any trauma in service since it was a congenital/vestigial soft tissue remnant, and the VA examiner agreed. The Board further notes that congenital or developmental defects are not disabilities or injuries subject to VA compensation, see 38 C.F.R. 3.303(c), and there is no indication that the Veteran has a current left or right knee disability that resulted from a disease or injury superimposed on this congenital or developmental defect during service. Rather, it has clearly been determined that the right knee retropatellar pain syndrome had resolved. While the Board acknowledges that the Veteran was found to have bilateral chondromalacia patella in November 2009, there is no opinion linking this condition to service. Moreover, as noted above, a December 2016 MRI showed no chondromalacia or articular cartilage of the patellofemoral or femorotibial articulations. In sum, the most probative evidence is against a finding that the Veteran has current disorders of the left and right knee that had their onset in service or are related to service. While the Veteran believes that he has current knee disorders that are related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a knee disorder are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any knee disorder, to include the assertion that his post-service problems are related to in-service wear and tear from parachute jumps and marching while wearing heavy gear, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current knee disorders is not competent medical evidence. The Board finds the opinions of the VA examiner and VA surgeon to be significantly more probative than the Veteran’s lay assertions. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims for service connection for left and right knee disorders, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to higher initial ratings for other specified trauma and stressor related disorder and major depressive disorder (formerly anxiety disorder), rated 30 percent disabling prior to January 12, 2016, and 50 percent disabling from that date, is remanded. The Veteran’s representative has requested a contemporaneous examination to assess the current severity of the Veteran’s service-connected psychiatric disability. His last VA examination on this disability was conducted almost three years ago. Updated VA treatment records should also be obtained. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records dated from August 2018. 2. After records development is completed, schedule the Veteran for a VA mental disorders examination to determine the current severity of the other specified trauma and stressor related disorder and major depressive disorder (formerly anxiety disorder). The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the psychiatric disorder should be reported. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel