Citation Nr: 18154033 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-38 842 DATE: November 29, 2018 ORDER Entitlement to service connection for a low back 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. Entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for bilateral plantar fasciitis is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against a finding that the Veteran’s low back condition was incurred in service or is otherwise attributable to his active service or any incident of service. 2. The preponderance of the competent evidence of record is against a finding that the Veteran’s left knee condition was incurred in service or is otherwise attributable to his active service or any incident of service. 3. The preponderance of the competent evidence of record is against a finding that the Veteran’s right knee condition was incurred in service or is otherwise attributable to his active service or any incident of service. 4. The competent medical evidence demonstrates that the Veteran does not currently have a chronic left ankle condition and has not had it during the pendency of the appeal or recent to the filing of the claim. 5. The preponderance of the competent evidence of record is against a finding that the Veteran’s bilateral plantar fasciitis was incurred in service or is otherwise attributable to his active service or any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from October 1983 to December 1986. Service Connection 1. Entitlement to service connection for a low back condition The Veteran contends that he developed a low back condition following service that is directly attributable to his carrying heavy equipment in service. He seeks service connection for the condition. The Board finds that, although the Veteran is diagnosed with lumbar spine scoliosis with pseudoarthritis, the preponderance of the evidence is against a finding that this low back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to a low back condition other than the October 1986 Report of Medical History, on which the Veteran marked that he had a history of recurrent back pain. However, no spinal abnormalities were noted on the Veteran’s October 1986 discharge examination. The Veteran was afforded a VA examination to evaluate the nature and etiology of his low back condition in October 2014. He reported that he experienced chronic back pain in service that he attributed to carrying heavy military equipment. He also acknowledged that he injured his back after service in separate motor vehicle accidents in 1988 and in 1990, and that he received treatment from a private chiropractor in both instances. Following these incidents, he stated that his back pain resolved but had returned recently. After a physical examination, the examiner set forth a diagnosis of mild congenital scoliosis and pseudarthritis of the L5 transverse process. As for the etiology of the low back condition, the examiner stated that it was less likely than not that the condition was incurred in or otherwise attributable to service. The examiner found that both diagnosed disorders were congenital in nature, and were not aggravated permanently by service. In support thereof, the examiner noted that the Veteran was never evaluated or treated for a low back condition in service and furthermore did not seek any treatment for low back pain until 1998 when he sustained a back injury secondary to a motor vehicle accident. The examiner further detailed that the Veteran denied repeated queries regarding his low back pain on periodic medical assessments from 2008 to 2014. As an aside, the Board acknowledges that the October 2014 VA examiner determined that the diagnosed scoliosis and pseudarthritis were congenital in nature, which raises the possibility that either or both conditions pre-existed service. However, a review of the Veteran’s entrance examination and accompanying records does not show that any diagnosed low back condition was documented when the Veteran entered service. The threshold inquiry in establishing whether a veteran has a pre-existing medical condition permanently aggravated by service is to determine by a clear and unmistakable evidence standard that the disorder in question preexisted service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Since there is no objective evidence that any low back condition preexisted service, the Board need not proceed with further evaluation of the preexisting nature of the low back condition and what effect, if any, service had on that low back condition. Moving on, the Veteran has submitted a November 2014 correspondence from a Dr. N.P. in which he stated that it was as likely as not that the Veteran’s documented in-service back condition marked the onset and/or cause of his current low back condition. No rationale was provided for this opinion. Where, as here, there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner’s opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D’Aires v. Peake, 22 Vet. App. 97, 107-108 (2008). The Board finds that the October 2014 VA examiner’s opinion is far more probative than Dr. N.P.’s unsubstantiated opinion. The VA examiner provided a rationale that took into consideration the Veteran’s documented medical history of treatment for low back symptoms, and accounted for the various post-service low back injuries that contributed to the intermittent periods of his receiving treatment after service. Dr. N.P., by contrast, offered no rationale for his opinion. Furthermore, he referred to a “documented in-service back condition,” and the Board cannot find any record which reflects that the Veteran received treatment for a low back condition in service. Thus, the VA examiner’s opinion, supported as it is by a thorough rationale that referred to available medical records, is far more probative than Dr. N.P.’s opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). While the Veteran is competent to report having experienced symptoms of a low back disorder and when they began, he is not competent to conclude that he has a low back disorder that has persisted since service or is otherwise attributable to service, in the absence of medical training and credentials. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). After consideration of the record, the Board finds that a preponderance of the evidence is against a determination that the Veteran’s currently diagnosed low back disorder was incurred in service or is otherwise attributable to an in-service injury or event. As such, the Veteran’s claim of service connection for a low back disorder must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the Veteran’s claim of service connection for a low back disorder, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for left and right knee conditions The Veteran contends that he developed left and right knee conditions following service that are both directly attributable to his carrying heavy equipment in service. He seeks service connection for both conditions. The Board finds that, although the Veteran has diagnosed bilateral chondromalacia with mild patellofemoral degenerative joint disease, the preponderance of the evidence is against a finding that the bilateral knee conditions began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to either a left or right knee condition. No lower extremity abnormalities were noted on the Veteran’s October 1986 discharge examination, and the Veteran did not report a history of experiencing knee pain on the corresponding October 1986 Report of Medical History. Accordingly, service connection for bilateral knee conditions on a direct basis pursuant to 38 C.F.R. § 3.303(a) is not warranted. Private treatment records from Emerywood Medical show that the Veteran sought treatment for left knee pain in February 2010 following an injury the previous month where he twisted his left leg on a rug. An initial X-ray examination shows no degenerative changes or traumatic injury, although a later X-ray examination that month did show a partial or chronic meniscus tear in the left knee. The Veteran underwent an arthroscopy of the left knee in March 2010 and again in December 2013. Subsequent records from Emerywood Medical reflect that the Veteran continued to experience left knee pain through to August 2014, the date of the most recently available medical records from this provider. The Veteran was afforded a VA examination to evaluate the nature and etiology of his bilateral knee conditions in October 2014. He reported that he developed bilateral knee pain in service and that he remembered being placed on a physical profile for one week for the purpose of avoiding physical activity with one of his knees. Following service, the Veteran detailed that he did not seek treatment for knee pain until 2010, at which time he was diagnosed with torn meniscus of the left knee and underwent surgical correction for the condition, first in 2010 and then again in 2013. At the time of the examination he was experiencing pain and stiffness in both knees. After a physical examination, the examiner set forth a diagnosis of bilateral chondromalacia with mild patellofemoral degenerative joint disease. As for the etiology of the bilateral knee conditions, the examiner found that it was less likely than not that either condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted that the Veteran was never evaluated or treated for a knee condition in service and furthermore did not seek any treatment for symptoms of a knee condition until 2010. The examiner further detailed that the Veteran reported a regimen of regular running exercise that likely caused the development of the bilateral knee conditions. Moreover, the examiner found that the left knee meniscal injury in 2010 was the direct result of an injury that occurred that same year, and was not at all attributable to service. The Veteran has submitted private opinions in support of his bilateral knee claim. In a November 2014 correspondence from a Dr. N.P., he stated that it was as likely as not that the Veteran’s documented in-service bilateral knee conditions marked the onset and/or cause of his current bilateral knee conditions. No rationale was provided for this opinion. In an December 2015 outpatient record, a Dr. C.B. stated that he had treated the Veteran for his knee conditions and remarked that “the rigors of active duty certainly could be a contributing factor” to the development of degenerative disease in the Veteran’s knees. Again, no rationale was offered for this opinion. The Board finds that the October 2014 VA examiner’s opinion is far more probative than Dr. N.P.’s unsubstantiated opinion or Dr. C.B.’s speculative opinion. Madden, supra. The VA examiner provided a rationale that took into consideration the Veteran’s documented medical history of treatment for bilateral knee condition symptoms, and especially noted that the Veteran did not seek any treatment for knee pain until his 2010 left knee injury. Dr. N.P., by contrast, offered no rationale for his opinion, and again, he referred to a “documented in-service knee condition” where there is no evidence of one. As for Dr. C.B., he used speculative language and also offered no rationale for his ultimate conclusion, significantly undermining the probative value of the opinion. Thus, the VA examiner’s opinion, supported as it is by a thorough rationale that referred to available medical records, is far more probative than either Dr. N.P. or Dr. C.B.’s opinion. Sklar, supra. Again, the Board notes that while the Veteran is competent to report having experienced symptoms of bilateral knee disorders and when they began, he is not competent to conclude that he has bilateral knee conditions that have persisted since service or are otherwise attributable to service, in the absence of medical training and credentials. Jandreau, supra. After consideration of the record, the Board finds that a preponderance of the evidence is against a determination that the Veteran’s currently diagnosed bilateral knee condition was incurred in service or is otherwise attributable to an in-service injury or event. As such, the Veteran’s claims of service connection for both left and right knee disorders must be denied. Gilbert, supra. As the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral knee conditions, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for a left ankle condition The Veteran contends generally that he developed a left ankle condition following service that is attributable to his service. The question before the Board is whether the Veteran has a diagnosable left ankle condition that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against a finding that the Veteran currently has a left ankle condition. Ultimately, there is no objective medical evidence that he has had a chronic condition or associated symptoms at any time during the pendency of the claim or recent to the filing of the claim, and, as such, the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to a left ankle condition. The Veteran did report at the time of his entrance to service on a June 1983 Report of Medical History that he fractured his right ankle prior to service; however, he did not report any history of a left ankle condition preexisting service, and no such condition was noted on the corresponding June 1983 entrance examination. No lower extremity abnormalities were noted on the Veteran’s October 1986 discharge examination, and the Veteran did not report a history of experiencing left ankle pain on the corresponding October 1986 Report of Medical History. Accordingly, service connection for a left ankle condition on a direct basis pursuant to 38 C.F.R. § 3.303(a) is not warranted. Private treatment records do not reflect any treatment or diagnosis of a left ankle condition. The Veteran was afforded a VA examination to evaluate the nature and etiology of his left ankle condition in October 2014. He did not endorse any history of having experienced symptoms of a left ankle condition in service, and he acknowledged that he had not sought any treatment for a left ankle condition ever since his discharge from service. He reported stiffness and pain in his left ankle. Both a physical examination and x-rays were entirely negative for any abnormalities of the left ankle. The examiner rendered an impression of a normal left ankle, except for old trauma of the medial malleolus. As a result, they did not offer any etiology opinion regarding the left ankle condition. In a November 2014 correspondence from a Dr. N.P., he stated that it was as likely as not that the Veteran’s documented in-service left ankle condition marked the onset and/or cause of his current left ankle condition. Once again, no rationale was provided for this opinion, nor were any medical findings or diagnosis to account for the supposed left ankle disorder. Ultimately, the Board finds that Dr. N.P.’s November 2014 opinion has no probative value, as it is based on an incorrect factual premise; i.e., that the Veteran had symptoms of a left ankle condition in service and currently has a diagnosable left ankle condition. The examiner provided no details of a current diagnosis, as opposed to the Veteran’s lay reports of a left ankle disorder. In comparison, the October 2014 VA examiner administered a physical examination and reviewed the claims file before concluding that the Veteran did not have a diagnosable left ankle condition. Thus, the Board ascribes far more probative weight to the VA examiner’s opinion that it was less likely than not that the Veteran had a left ankle condition that was incurred in service or was otherwise attributable to service. Madden, supra. Once again, the Board notes that while the Veteran is competent to report having experienced symptoms of a left ankle condition and when they began, he is not competent to conclude that he has a left ankle condition that has persisted since service or is otherwise attributable to service, in the absence of medical training and credentials. Jandreau, supra. The Board has considered this case in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Id. at 1364. “[A] physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity.” Id. at 1367. Ultimately, the Federal Circuit in Saunders held that, to establish the presence of a disability, a veteran will need to show that his or her pain reaches the level of functional impairment of earning capacity. Id. at 1368. That having been noted, the Board finds the present case to be readily distinguishable from Saunders. The Veteran’s October 2014 VA examination was thorough, and both physical and diagnostic testing revealed no functional limitations on examination. While the examiner declined to provide an opinion, without resort to speculation, of whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups, the combination of the Veteran’s having confirmed no left ankle treatment in the past 30 years and the complete dearth of objective examination findings weighs strongly against a finding of pain that reaches a level of functional impairment of earning capacity. Dr. N.P.’s opinion sheds no further light on this matter; it is instead a cursory nexus opinion unsupported by a rationale, symptoms, or a diagnosis. In light of the October 2014 VA examiner’s cumulative findings and the lack of medical records that show a diagnosis of and treatment for a left ankle, the Board finds that the preponderance of the evidence is against a determination that, even in light of Saunders, the Veteran has the condition at issue or that it is attributable to service. Accordingly, service connection for a left ankle condition must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim of service connection for a left ankle condition, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 4. Entitlement to service connection for bilateral plantar fasciitis The Veteran contends that he was treated for bilateral foot pain in service that was a manifestation of his currently diagnosed plantar fasciitis. He seeks service connection for the condition. The Board finds that, although the Veteran has diagnosed bilateral plantar fasciitis, the preponderance of the evidence is against a finding that the condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to bilateral plantar fasciitis. In October 1984 he reported bilateral foot pain after running, but a physical examination documented normal arches. Thereafter, in October 1985, the Veteran sought treatment for left foot swelling, and was put on a temporary physical profile. The impression was a strain. No abnormalities related to the Veteran’s feet were noted on the October 1986 discharge examination, and the Veteran did not report a history of experiencing foot pain on the corresponding October 1986 Report of Medical History. Private treatment records from Emerywood Medical show that the Veteran sought treatment for itchy, bleeding feet in October 2010 that he detailed had been occurring for the previous few months. The impression was tinea pedis, and he was prescribed topical ointment. Thereafter, December 2011, January 2013, and January 2014 yearly evaluations detailed no abnormalities in either foot. The Veteran did not report any foot pain until August 2014, at which point he sought treatment for soreness and burning in the soles of his feet that he stated had been occurring for the previous 20 to 30 years. The impression was bilateral plantar pain. The Veteran was afforded a VA examination to evaluate the nature and etiology of his bilateral plantar fasciitis in October 2014. He reported that he experienced bilateral foot pain in service and that he remembered being treated with topical iodine. Following service, the Veteran detailed that he sought treatment for bilateral foot pain and itching in 2014. The itching was treated with iodine and ointment, and he was also prescribed custom orthotic insoles. At the time of the examination he was experiencing pain, burning and itching in both foot. After a physical examination, the examiner set forth a diagnosis of bilateral plantar fasciitis. As for the etiology of the condition, the examiner found that it was less likely than not that bilateral plantar fasciitis was incurred in or otherwise attributable to service. In support thereof, the examiner noted that the Veteran was never diagnosed with a foot condition in service and did not exhibit any issues with his foot arches when he did seek treatment for foot pain. The examiner further detailed that the Veteran did not report any bilateral foot pain to his private treating physician until 2014, at which point he stated he had been experiencing such pain for the past 20 to 30 years. It was the examiner’s impression that the bilateral foot pain was much more likely attributable to the Veteran’s reported regimen of regular running exercise. The Veteran has submitted private opinions in support of his bilateral plantar fasciitis claim. In a November 2014 correspondence from a Dr. N.P., he stated that it was as likely as not that the Veteran’s documented in-service bilateral foot conditions marked the onset and/or cause of his current bilateral foot condition. No rationale was provided for this opinion. In a December 2015 correspondence, a Dr. D.D. stated that he had treated the Veteran for his bilateral foot condition and remarked that “repetitive activities and trauma could lead to” the development of the bilateral foot condition. Again, no rationale was offered for this opinion. The Board finds that the October 2014 VA examiner’s opinion is far more probative than Dr. N.P.’s unsubstantiated opinion or Dr. D.D.’s speculative opinion. Madden, supra. The VA examiner provided a rationale that took into consideration the Veteran’s documented medical history of treatment for bilateral foot condition symptoms, and especially noted that the Veteran did not seek any treatment for foot pain until 2010, after which he again did not seek treatment for another four years until August 2014. Dr. N.P., by contrast, offered no rationale for his opinion, while Dr. D.D, used speculative language and also offered no rationale for their ultimate conclusion. These deficiencies undermine the probative value of both opinions. Thus, the VA examiner’s opinion, supported as it is by a thorough rationale that referred to available medical records, is far more probative than either Dr. N.P. or Dr. D.D.’s opinion. Sklar, supra. Again, the Board notes that while the Veteran is competent to report having experienced symptoms of a bilateral foot condition and when they began, he is not competent to conclude that he has a bilateral foot condition that has persisted since service or is otherwise attributable to service, in the absence of medical training and credentials. Jandreau, supra. After consideration of the record, the Board finds that a preponderance of the evidence is against a determination that the Veteran’s currently diagnosed bilateral plantar fasciitis was incurred in service or is otherwise attributable to an in-service injury or event. As such, the Veteran’s claim of service connection for bilateral plantar fasciitis must be denied. Gilbert, supra. As the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral plantar fasciitis, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel