Citation Nr: 18158190 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-63 686 DATE: December 14, 2018 ORDER 1. Entitlement to service connection for right knee replacement is denied. 2. Entitlement to service connection for a left knee disability as secondary to a service-connected disability is denied. 3. Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. A right knee disability was not shown in service, arthritis was not shown to a compensable degree within one year of service discharge, and right knee replacement is not otherwise related to service. 2. A left knee disability was not shown in service, arthritis was not shown to a compensable degree within one year of service discharge, caused by or otherwise related to service; or shown to be caused by or aggravated by a service-connected disability. 3. The Veteran does not have a current diagnosis of bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee replacement have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for service connection for a left knee disability as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2018). 3. The criteria for service connection for a pes planus have not been met 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1956 to November 1958. The record shows that the Veteran’s service treatment records are fire-related. A Personnel Information Exchange Systems (PIES) attempt for service personnel records was made in August 2015 and was returned with a response indicating that the record is fire-related and all available personnel documents from the Veteran’s reconstructed record had been sent to be uploaded to Veterans Benefits Management System (VBMS). It is noted that no service treatment records or dental records were recovered from the file. Under such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the claims is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). In his August 2015 VA Application for Disability Compensation statement, the Veteran requested to be scheduled for VA Compensation and Pension examinations. VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012). The Veteran was not afforded a VA examination because it is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 79. The claims do not meet the requirements for obtaining a VA medical opinion. As discussed in more detail below, the weight of the evidence is against the existence of current disabilities that may be associated with an in-service event or injury, therefore the Board finds that VA examinations are not required. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for right knee replacement. The Veteran contends that service connection for his right knee replacement is warranted because it was a result of service. Specifically, the Veteran asserts that he was injured during service in Korea during a training exercise when Howitzer ammunition was dropped on his right leg. See 1) December 2016 Form 9; 2) May 2016 statement; 3) February 2016 NOD; and 4) December 2015 statement. The Veteran has also previously asserted that his right knee replacement is due to heavy marching. See August 2015 VA Application for Disability Compensation. The Board has carefully reviewed the evidence of record and finds that service connection for right knee replacement is not warranted because the preponderance of the evidence is against a finding that the Veteran’s right knee replacement is related to service, which is explained below. As to evidence of a current disability, private medical records, including a February 2014 record reflect a revision to a total stabilized right knee arthroplasty of the femoral and tibial components due to right knee pain and a total right knee arthroplasty in 2004. Endstage degenerative joint disease (DJD) of the bilateral knees was also noted in January 2004. Thus, the Veteran meets the first element for service connection. As to an in-service disease or injury, the Veteran asserts that Howitzer ammunition was dropped on his right leg during training while stationed in Korea. The Veteran has also attributed his right knee disability to marching while in service. The Veteran’s service treatment records are fire-related; regardless, the Board finds that the Veteran is competent to report his duties while in service. Therefore, the Board concedes that the Veteran’s duties included marching in service. As to a nexus to service, the Board finds that the preponderance of the evidence is against such a nexus. The Veteran has proffered statements from an individual with the initials O.C. and his brother whom both stated that the Veteran had complained of knee pain while on active duty. However, January 2004 private medical records indicate that the Veteran was a retired railroad worker who reported a long history of bilateral knee pain since about 1972. An October 2005 private medical record reflects that the Veteran was admitted for an elective total right knee arthroplasty and had a 20-year history of right knee pain with x-rays which showed endstage DJD. This tends to show that more than 10 years following service discharge, the Veteran was not complaining of knee problems. The preponderance of the evidence is against a finding that arthritis manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service and a presumption of service connection based on chronicity of arthritis is not appropriate. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). The Board finds that the Veteran has not offered probative and competent evidence establishing a nexus between his right knee replacement and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A diagnosis of a knee disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. There are numerous post-service medical records reflecting complaints and treatment for a right knee disability. However, these records do not provide a positive nexus regarding the onset, etiology, or relationship of a right knee disability to military service. The Veteran has not provided probative medical evidence in support of his assertion that Howitzer ammunition dropped on his right leg or marching in-service caused his subsequent right knee disability which required total knee replacement. Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his right knee replacement, the Board finds that the current right knee disability was not incurred in service and it is not otherwise related to service. See 38 U.S.C. § 5107(a). Accordingly, service connection for right knee replacement is not warranted. 2. Entitlement to service connection for a left knee disability as secondary to right knee replacement. The Veteran mainly asserts that he is entitled to service connection for a left knee disability as secondary to his right knee disability, including in a December 2016 substantive appeal (VA Form 9). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2017). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. The Veteran’s claim of entitlement to service connection for right knee replacement is denied herein; therefore, the claimed left knee disability cannot be granted on a secondary basis as right knee replacement is not a service-connected disability. The claim must be denied on this basis. Endstage degenerative joint disease (DJD) of the bilateral knees was also noted in a January 2004 private medical record. The record also reflects a past surgical history of an arthrotomy in 1972 on the left knee and subsequent total left knee arthroplasty in January 2004 and September 2009. These records show that the Veteran reported a long history of bilateral knee pain since about 1972. This tends to show that more than 10 years following service discharge, the Veteran was not complaining of knee problems. The preponderance of the evidence is against a finding that arthritis manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service and a presumption of service connection based on chronicity of arthritis is not appropriate. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). To the extent that the Veteran asserts that marching in service caused his left knee disability, he has not provided probative medical evidence in support of his assertion. A diagnosis of a knee disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his left knee disability, the Board finds that the current left knee disability was not incurred in service and it is not otherwise related to service. See 38 U.S.C. § 5107(a). Accordingly, service connection for a left knee disability is not warranted on any basis. 3. Entitlement to service connection for bilateral pes planus. The Veteran asserts that service connection for bilateral pes planus is warranted because it was incurred in, caused by, or otherwise related to his military service. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of bilateral pes planus, therefore service connection is not warranted. The Veteran asserts that he has a current diagnosis of bilateral pes planus, however, lay assertions do not constitute a competent clinical diagnosis of bilateral pes planus. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran has not offered competent medical evidence in support of his assertion that he has a current diagnosis of bilateral pes planus or evidence of functional impairment involving the either the left or right foot. In the absence of a qualifying current diagnosis for bilateral pes planus, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). (Continued on the next page)   The preponderance of the evidence is against the claim of service connection for bilateral pes planus, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel