Citation Nr: 18155239 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-59 295 DATE: December 3, 2018 ORDER Entitlement to service connection for a left knee condition, to include as secondary to service-connected pes planus, is granted. Entitlement to service connection for a right knee condition, to include as secondary to service-connected pes planus, is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise with respect to whether the Veteran’s current left knee condition, diagnosed as left knee tendonitis with mild degenerative changes and Osgood-Schlatter disease, is aggravated by his service-connected bilateral pes planus. 2. A current right knee disability is not demonstrated by the evidence of record. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for establishing service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from October 1985 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in June 2015. The Veteran perfected an appeal. See June 2015 Notice of Disagreement (NOD); October 2016 Statement of the Case (SOC); November 2016 VA Form-9. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (West 2012); 38 C.F.R. 3.303 (a) (2017). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for certain chronic diseases, such as arthritis, if diagnosed as such in service or manifested to a compensable degree within one year after a veteran's separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where a veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309 (a)). Arthritis is included in the list of chronic diseases under 38 C.F.R. § 3.309 (a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310 (a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310 (a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310 (b)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran seeks entitlement to service connection for a bilateral knee condition, which he contends is secondary to bilateral pes planus and pes valgus. At the outset, the Board notes that the Veteran is service-connected for bilateral pes planus (also claimed as bilateral pes valgus), evaluated as 50 percent disabling, from April 7, 2014. Service treatment records (STRs) show that the Veteran was seen in January 1987 after tripping over a curb and falling on his left knee the day prior. At that time, examination was within normal limits, with no swelling, effusion, or instability, with the exception of some tenderness along the patellar tendon; gait was normal. The Veteran was diagnosed with left knee tendonitis, which was treated conservatively, and he was not seen for any additional follow-up. A January 1988 STR documents that the Veteran underwent an examination at the Naval Hospital at Camp Lejeune at which time he complained of “ascending pain into both knees.” Post-service treatment records from Parkwood Podiatry Associates note treatment for the Veteran’s bilateral pes planus. Relevant to the Veteran’s knee claims, are notations documenting bilateral lower limb pain and foot pain that radiates when walking and running. A VA examination was performed in June 2015. The examiner detailed the January 1987 left knee injury as described above. The Veteran reported that he now had pain in both knees with his painful feet. He stated, “I have a knot on the front of my left knee” and “I’ve always felt that my foot problems have caused my knee pain.” The Veteran denied flare-ups of the bilateral knees but indicated that he experienced functional impairment in that both knees hurt equally due to foot pain and condition. See June 2015 VA Examination. On range of motion testing, the Veteran displayed left knee flexion of 0 to 105 degrees and left knee extension of 105 to 0 degrees, with pain on flexion and with weight bearing. Right knee flexion was from 0 to 110 degrees, with right knee extension of 110 to 0 degrees. The examiner noted that although right knee range of motion was outside of the normal range, it was normal for the Veteran for reasons other than a knee condition, specifically body habitus. The right knee exhibited pain on flexion and with weight bearing. There was objective evidence of localized tenderness or pain on palpation along the medial joint line bilaterally. For both knees, the examiner reported that although pain was noted on examination, it did not result in, or cause, functional loss. A diagnosis of left knee tendonitis was rendered. X-ray imaging of the left knee showed mild degenerative changes and evidence of Osgood-Schlatter disease. A prominent left tibial tubercle on examination, as noted on x-ray, was evidence of old Osgood Schlatter disease. The examiner discussed this with the Veteran who made no mention of left knee pain while in adolescence. The examiner opined that the findings on the left knee x-ray were not related to the Veteran’s left knee condition as noted in the STRs or medical history. Specifically, the examiner stated that it was less likely than not that the Veteran’s current left knee condition was incurred in service, to include the in-service diagnosis of patellar tendonitis in 1987. As rationale, the examiner noted that the Veteran was seen on one occasion in service, treated conservatively, and received no follow-up treatment. In-service patellar tendonitis resolved according to the Veteran’s history. The examiner did not identify any right knee disability. X-ray imaging of the right knee revealed a normal knee. Id. The examiner reported the Veteran’s belief that his bilateral knee pain was caused by his service-connected pes planus. The examiner stated that the knees were equally uncomfortable and painful, and noted that the Veteran had not been seen for knee pain since 1987. The left knee condition in service was acute, self-limiting, and resolved. There were no records of recurring injuries and the Veteran’s current bilateral knee discomfort began in 2013, some 26 years after service. Id. In addition, the examiner opined that the Veteran’s current left knee condition was less likely than not proximately due to, or the result of, his service-connected pes planus. As rationale, the examiner stated that the weight of the medical literature suggests that stress of the gait with pes planus/pes valgus is born by the joints of the foot and ankle. The knee is not involved in the heel-strike to foot-flat (contact), foot-flat to heel-off (mid-stance), heel-off to toe-off (propulsion), toe-off to heel-strike (swing) gait pattern. Although the examiner did not diagnose a right knee condition, he provided the same rationale in finding that it was less likely than not that the Veteran had a right knee condition that was proximately due to or the result of his service-connected pes planus. Id. In July 2016, the Veteran submitted a private medical opinion from M.M., PA-C, of Burke Primary Care. M.M. noted that she had been treating the Veteran since he established care in December 2013. M.M. stated that the Veteran’s bilateral knee pain was directly correlated to his service-connected bilateral pes planus. She noted that the Veteran reported knee pain that began at the same time as his foot pain. A review of STRs indicated that the Veteran had concerns of “ascending pain into both knees” as documented on a January 1988 examination at the Naval Hospital at Camp Lejeune. M.M. further noted that the mild degenerative changes to the Veteran’s left knee might be contributing to some of his knee discomfort. She stated that she would not expect Osgood-Schlatter to be a contributing factor, as this disease is most commonly symptomatic during childhood and rapid growth. See July 2016 Private Medical Opinion. Thus, with only mild findings of the left knee and a completely normal x-ray of the right knee, M.M. stated that she suspected pes planus was more likely than not causing the Veteran’s bilateral knee pain. She noted that, although the knee is not involved in the heel-strike to foot-flat (contact), foot-flat to heel-off (mid-stance), heel-off to toe-off (propulsion), toe-off to heel-strike (swing) gait pattern, the alignment of the supported skeleton will be affected. With pes planus, the bony structures of the foot and ankle are not supported by the natural arch of the foot. The resultant pronation then disrupts the normal alignment of the knees, hips, and spine. She stated that one study has shown a nearly fifty percent increase in knee pain and intermittent back pain associated with moderate to severe pes planus. Id. 1. Left Knee Condition The Veteran contends that his left knee condition was caused or aggravated by his service-connected bilateral pes planus. Here, the Board finds that the evidence of record is sufficient to grant the claim on a secondary basis. As an initial matter, the Veteran has a currently diagnosed left knee condition. See June 2015 VA examination, diagnosing left knee tendonitis, mild degenerative changes, and old Osgood-Schlatter disease. Additionally, the Veteran is service connected for bilateral pes planus. Service treatment records document an in-service left knee injury and a diagnosis of left knee patellar tendonitis. However, the Veteran does not contend, and the medical evidence of record does not support, that his currently diagnosed left knee condition was caused by the in-service injury to his left knee. The Veteran has consistently maintained that his symptoms of bilateral knee pain are a direct result of his bilateral pes planus. Furthermore, the only direct service connection etiology opinion, provided by the June 2015 VA examiner, weighs against the claim. Thus, the remaining question for consideration here is whether the Veteran's currently diagnosed left knee condition is proximately due to, or aggravated by, the service-connected bilateral pes planus. The Board finds that the etiology opinions pertaining to secondary service connection are in relative equipoise. In this regard, the June 2015 VA examiner found that the Veteran’s left knee disability was less likely than not proximately due to or the result of his pes planus. The opinion contained a thorough discussion of the Veteran’s medical history and explained the basis for the opinion through discussion of pertinent medical principles. Specifically, the examiner noted that the medical literature reveals that the stress of gait with pes planus/pes valgus is born by the joints of the foot and the ankle, with no involvement of the knee in contact, mid-stance, propulsion, or swing gait pattern. While the Board finds this explanation probative and responsive to the question of a causal relationship, the examiner notably failed to address whether the Veteran’s left knee condition is aggravated by his pes planus. The record also contains a July 2016 statement from M.M., the Veteran’s private physician. In pertinent part, she noted that although the knee is not involved in the gait patterns described by the VA examiner, the alignment of the supported skeleton will nonetheless be affected. Specifically, she explained that with pes planus, the bony structures of the foot and ankle are not supported by the natural arch of the foot, resulting in pronation that disrupts the normal alignment of the knees, hips, and spine. In support of her conclusion, she referenced a study that has shown a nearly fifty percent increase in knee pain associated with moderate to severe pes planus. The Board acknowledges that while M.M. draws a direct correlation between the Veteran’s ongoing knee pain symptoms and pes planus, she does not explicitly find that his diagnosed left knee conditions were caused by, or aggravated by pes planus. Nonetheless, the Board finds that her explanation of the manner in which pes planus results in pronation that disrupts normal knee alignment, at the least suggests that the Veteran’s left knee condition is aggravated by his pes planus, if not proximately caused by it. Further, the Board notes that M.M. has been the Veteran’s treating physician for his pes planus condition for several years. Thus, the Board assumes that her opinion is based on a complete and accurate understanding of the Veteran’s pertinent history. Furthermore, as a certified physician assistant, M.M. is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). Finally, the private opinion is not probatively refuted by the June 2015 VA opinion. Given the above, the Board finds the evidence on whether the Veteran's left knee condition has been proximately caused or aggravated by his service-connected pes planus to be at least in relative equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for a left knee condition is warranted. 2. Right Knee Condition The Veteran seeks entitlement to service connection for a right knee condition. Unfortunately, the preponderance of the evidence is against finding that the Veteran has current right knee disability. Service connection requires a showing of a current disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). See also Allen v. Brown, 7 Vet. App. 439 (1995). Historically, symptoms of pain alone, without a diagnosis or identifiable condition, were insufficient to establish a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). However, in a recent decision, the U.S. Court of Appeals for the Federal Circuit held that pain alone may constitute a disability where there is attendant functional impairment. See also Saunders v. Wilke, 886 F.3d 1356 (Fed. Cir. 2018). To establish the presence of a disability, it is not enough for the Veteran to simply assert subjective pain, rather he must demonstrate that his pain reaches the level of functional impairment of earning capacity. Id. In the instant case, service treatment records document “ascending pain into both knees” but contain no evidence of treatment or diagnosis of a right knee condition. For his part, the Veteran has not asserted a direct in-service incurrence of a right knee condition, but rather that he has a right knee condition which is secondary to his service-connected pes planus. Post-service private and VA treatment records document ongoing complaints of right knee pain, but provide no diagnosis of a right knee condition. On the June 2015 VA examination report, the VA examiner noted decreased right knee range of motion, with pain on flexion, with weight bearing, and on palpation along the medial joint line. Despite findings of range of motion outside of the normal range, the examiner indicated that the findings were normal for the Veteran for reasons other than a knee condition, specifically body habitus. Notably, the examiner reported that although pain was noted on examination, it did not result in, or cause, functional loss. X-ray imaging performed during the examination showed a normal right knee. The examiner did not diagnose a right knee condition and opined that the Veteran’s right knee symptoms were unrelated to his service-connected pes planus. The private medical opinion of M.M., submitted by the Veteran in July 2016, acknowledged x-ray findings of a normal right knee and provided no diagnosis of a right knee condition, independent from the Veteran’s complaints of right knee pain. As discussed in the preceding section, M.M. reported a positive correlation between pes planus and knee pain. However, in contrast to the Veteran’s left knee, which has several diagnoses that could reasonably be inferred to be proximately caused or aggravated by pes planus, the right knee has no such underlying diagnosis. Further, the Veteran has provided no additional medical evidence demonstrating the presence of a current right knee disability. Based on the foregoing, the Board finds that service connection for a right knee condition must be denied. Although the Veteran has complained of experiencing right knee pain, no specific right knee diagnosis has been rendered. Even considering the holding in Saunders, a current right knee disability is not shown. To establish compensation based on pain as a disability, there must be a showing of functional loss. Here, the June 2015 VA examiner specifically found that although pain was noted on examination, it did not result in, or cause, functional loss. The Board acknowledges that the examiner found that the conditions listed in the diagnosis section impacted the Veteran’s ability to perform some types of occupational tasks. In this regard, the examiner indicated that the Veteran could not perform prolonged standing or walking for greater than 45 minutes to an hour. However, the Board notes that this functional impact is essentially the same as the functional impact attributed to the Veteran’s service-connected pes planus. The examiner’s specific finding that right knee pain did not result in, or cause, functional loss suggests that any functional impact is related to the Veteran’s pes planus rather than right knee pain. Even affording the Veteran the benefit of the doubt and finding that his current symptoms of right knee pain are secondary to his service-connected pes planus, the Board is not convinced that such subjective complaints of right knee pain constitute a disability which reaches the level of functional impairment of earning capacity, separate and apart from the Veteran’s service-connected pes planus, which already contemplates and compensates the exact functional impact described by the June 2015 examiner. Therefore, based on the evidence of record, service connection for a right knee condition, to include as secondary to service-connected bilateral pes planus is denied because there is no evidence of a diagnosis of a right knee condition that occurred in, or was caused by, military service. There is also no evidence of a diagnosis of a right knee condition that is secondary to the Veteran’s service-connected pes planus. Without proof of a present disability due to disease or injury, there can be no valid claim. See Brammer, supra. Here, while the Veteran is competent to discuss current pain and other experienced symptoms, he is not competent to diagnose himself as having a chronic disability of the right knee. See Layno v. Brown, 6 Vet. App. 465 (1994). Nor is he competent to opine on the etiology of any claimed right knee disability, to include as secondary to his service-connected pes planus because he lacks the required medical expertise and such conditions are not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). (Continued on the next page)   As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis