Citation Nr: 18153806 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-29 737 DATE: November 29, 2018 ORDER 1. Service connection for a left knee disorder (claimed as knee pain) to include as secondary to service-connected foot disabilities is denied. 2. Service connection for a right knee disorder (claimed as knee pain) to include as secondary to service-connected foot disabilities is denied. FINDINGS OF FACT 1. The Veteran is not currently diagnosed with a left or right knee disability. 2. The pain in the left and right knees does not reach the level of functional impairment of earning capacity. CONCLUSIONS OF LAW 1. The criteria for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from October 1981 to July 1982. The Veteran contends that he has pain in both his left and right knees due to his service-connected pes planus with chronic plantar fasciitis, tarsal tunnel dislocation syndrome, and calcaneocuboid joint compression syndrome. He seeks secondary service connection for a bilateral knee disability. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota, which denied service connection for left and right knee disorders. The Veteran filed a notice of disagreement (NOD) in April 2016, and a statement of the case was issued in May 2016. The Veteran timely appealed in June 2016. Service Connection Legal Criteria Service connection may be granted for a current disability arising from a disease or injury incurred or aggravated by active service. 38 U.S.C. § 1131. Service connection generally requires (1) medical 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. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. In evaluating a service connection claim, evidence of a current disability is an essential element, and where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability"). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). In Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.” It further held that pain alone can serve as a functional impairment, and, therefore, qualify as a disability. Id. at 1363-1365. The Federal Circuit limited its holding, stating “we do not hold that a veteran could demonstrate service connection simply by asserting subjective pain...To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” Id. at 1367. Service Connection for Left and Right Knee Pain In the present matter, the Veteran contends that his bilateral knee pain is the result of the service-connected pes planus with chronic plantar fasciitis, tarsal tunnel dislocation syndrome, and calcaneocuboid joint compression syndrome (foot disabilities). As such, he seeks secondary service connection for left and right knee pain. In the notice of disagreement, the Veteran characterizes the knee pain as a “current disability.” After a review of all the evidence, lay and medical, the Board finds that the evidence does not show a currently diagnosed with a left or right knee disability and the pain in the left and right knees does not reach the level of functional impairment of earning capacity. The medical records show no diagnosis of disability in either knee. A VA medical examiner and two private physicians discuss the bilateral knee pain, but do not refer to, nor make, a specific diagnosis regarding the knees or knee pain. The medical records and lay statements show reports of pain in both knees as early as 2014 (several years after service). As explained above, in certain circumstances, the Federal Circuit Court has held that pain alone, with no diagnosis, can be a basis for establishing a disability for VA compensation benefits—provided that the pain causes a functional impairment significant enough to limit earning capacity. See Saunders v. Wilkie. While the record shows bilateral knee pain, the lay and medical evidence does not show that the pain level causes functional impairment of earning capacity to be disabling. In an April 2015 VA Compensation and Pension Examination (VA Exam) conducted in person, a VA medical examiner found no functional limitation of the Veteran’s knees and no evidence of a knee disability in either knee. Specifically, the VA examiner found normal functioning for all areas of testing for both knees, including, but not limited to, normal range of motion for flexion and extension and normal strength. The VA examiner also found no evidence of pain or tenderness with weightbearing, crepitus (which is grating, crackling, or popping sounds and sensations when moving the knee), or ankylosis (which is abnormal stiffening and immobility of the knee joint). The VA examiner based the medical assessment on an in-person examination of the Veteran, as well as a review of military and civilian treatment records. Thus, the Board finds that the VA examiner is competent and credible, and that the opinion deserves substantial probative weight. A private doctor also assessed the Veteran’s knee pain in a May 2016 Knee and Lower Leg Conditions Disabilities Benefits Questionnaire (DBQ). Like the VA examiner, the private doctor did not identify a knee diagnosis. Rather, he noted that the plantar fasciitis diagnosis included medial knee pain (suggesting a worsening or an additional symptom of the plantar fasciitis). The private doctor also did not find functional impairment related to the knee pain; instead, the doctor indicated limitations to prolonged standing or walking attributable to the already service-connected diagnosed plantar fasciitis. The private examiner indicated the knee pain was a symptom of the already service-connected foot disabilities. Notably, in a separate claim, this DBQ combined with a subsequent June 2016 VA Examination (which focused on the Veteran’s foot condition and does not discuss knee pain), as well as other evidence, led to an increased rating for the foot disability. The same symptoms may not be compensated again as a knee disability. See 38 C.F.R. § 4.14. The private doctor stated in the DBQ that he did not perform a knee examination, did not review the claim file, and did not check off any boxes on the DBQ to note which medical records were reviewed. The only record referenced in the DBQ is a foot x-ray in support of a plantar fasciitis diagnosis (the already service-connected disability). Although the Board finds the private doctor to be competent and credible, the DBQ he prepared provides little probative value regarding whether the Veteran’s bilateral knee pain rather than his diagnosed plantar fasciitis caused functional limitation over long periods of time. Notably, the VA examiner did not address this specific functional limitation because the examination was completed in one visit, and the examiner could not speculate on limitations over time. It is unclear from the DBQ how the private doctor could assess this limitation. Even assuming this one limitation came from bilateral knee pain, there is no indication in the record that this limitation rises to the level of a functional impairment of earning capacity. The doctors found no other functional limitations. Upon consideration of the Veteran’s description of knee pain and limitations, VA Examination report, and the private doctor’s DBQ, the Board finds that, while the Veteran has bilateral knee pain, the knee pain has not manifested in a diagnosed disability or functional impairment of earning capacity. For these reasons, the Board finds that the bilateral knee pain does not meet the criteria for a “disability” under 38 U.S.C. § 1131, which is an essential element of a service connection claim. As the preponderance of the lay and medical evidence is against the claim, service connection for a bilateral knee disability to include as secondary to a service-connected pes planus disability (claimed as bilateral knee pain) must denied, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel