Citation Nr: 18161062 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 13-15 723 DATE: December 28, 2018 ORDER Entitlement to service connection for a right ankle disability, to include degenerative arthritis, is denied. Entitlement to service connection for a right hip disability, secondary to a right ankle condition, is denied. Entitlement to service connection for a right knee disability, to include degenerative joint disease of the right knee, secondary to a right ankle condition, is denied. Entitlement to service connection for a lumbosacral strain with degenerative changes, secondary to a right ankle condition, is denied. FINDINGS OF FACT 1. The probative evidence of record does not indicate that the Veteran’s right ankle disability is etiologically related to the Veteran’s military service. 2. The probative evidence of record does not indicate that the Veteran’s right hip disability is etiologically related to the Veteran’s military service, to include as secondary to a right ankle disability. 3. The probative evidence of record does not indicate that the Veteran’s right knee disability is etiologically related to the Veteran’s military service, to include as secondary to a right ankle disability. 4. The probative evidence of record does not indicate that the Veteran’s lumbosacral strain, with degenerative changes, is etiologically related to the Veteran’s military service, to include as secondary to a right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right knee disability, to include degenerative joint disease of the right knee, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a lumbosacral strain, with degenerative changes, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1984 to February 1987. The Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing held in January 2016. However, that VLJ no longer works for the Board. The Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing before a VLJ who would render a determination in his case. He chose to have a second hearing and testified before the undersigned VLJ at a videoconference hearing in May 2018. Transcripts of both proceedings have been associated with the record. The Veteran’s claims were remanded by the Board for further development in July 2018. Among those remanded claims was entitlement to service connection for bilateral carpal tunnel syndrome (CTS). Through a rating decision dated November 2018, this claim was granted. As this represents a full grant of benefits on the issues of entitlement to service connection for CTS, these matters are no longer before the Board. The development for the remaining issues has been completed, and the claims are now ready for review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service, if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a right ankle disability The Veteran contends that he injured his right ankle while in service and that it has continued to hurt and be weak since service. Service treatment records (STRs) show that the Veteran injured his right ankle in August 1986, but the injury resolved within 4 days. He also has a current diagnosis of right ankle degenerative arthritis. Therefore, the first two elements of service connection are met. Shedden, supra. The analysis now turns to whether the current diagnosis is related to the in-service injury. The Board notes that the Veteran’s separation examination in March 1989 was completely within normal limits for musculoskeletal issues except a note that the Veteran was overweight. The Veteran has been afforded several VA examinations to determine the etiology of his condition. The Veteran’s first examination was in November 2009. The Veteran complained that he jumped off a truck in 1986 and twisted his ankle. His pain resolved over a period of two weeks. Since that injury, he would feel his ankle turn “a little bit,” and “on a rare occasion.” However, since his initial injury he had not any subsequent injuries to his ankle. After examination, the examiner stated that any then-current right ankle injury was related to aging. The Veteran had a second VA examination in April 2016. The Veteran reported that after service, he had several ankle sprains but did not need medical intervention. He also listed a history of manual labor doing work such as sandblasting, assembly work, mining, and as a heavy diesel mechanic. After examination, the examiner stated that it is less likely than not that the ankle condition was related to service, but did not explain why. A third examination was held in June 2017 with a similar history as the other examinations. Due to a lack of a diagnosed condition in the STRs, the examiner gave the opinion that the current ankle disability was less likely than not related to his service. The most recent examination came in September 2018. In preparing the opinion, the examiner reviewed the previous examinations of record. The examiner concluded that it is less likely than not that the Veteran’s ankle condition is related to his service. In support thereof, the examiner noted (1) the minor injury in-service; (2) the lack of complaints of ankle pain in 2006 and 2009 in VA treatment records; (3) and a history of methamphetamine use and the degenerative effects of habitual use. The examiner concluded that there was no evidence of chronic problems prior to the Veteran’s discharge from service, most sprains resolve with lasting effects, and that the Veteran’s current diagnosis is more likely related to his post-discharge physical injuries and other risk factors, such as methamphetamine use. The Board gives November 2009 and September 2018 VA examiners’ opinions great probative weight as they are based on a review of the medical record and provide support for their conclusions that are consistent with the other evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay opinion that his right ankle condition, to include arthritis, is related to service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s ankle condition and service be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a connection between the two. Moreover, he has offered only conclusory statements on the same. In any case, the Veteran’s opinion is outweighed by the reasoned, expert opinions provided by the VA examiners, which are medical professionals while the Veteran is not shown to be. Further, the Board finds that the Veteran has not demonstrated a continuity of symptomology since service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Veteran asserted during his November 2009 VA examination that he had not had symptoms since his injury other than his ankle turning occasionally. Later statements indicate that he sometimes had ankle sprains, but that it was not consistent, nor had it continued since service. There is no other evidence of record suggesting that the Veteran’s right ankle arthritis began during service or within one year of separation. Therefore, continuity is not shown. In view of the above, the weight of the evidence is against the claim for service connection for a right ankle condition. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a right hip disability, a right knee disability, and a lumbosacral strain with degenerative changes, all secondary to a right ankle disability. The Veteran contends that these three issues are secondary to his right knee condition. In addition to direct service connection, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. However, the Veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). As the Veteran is not entitled to service connection for his right ankle disability, the criteria for service connection for a right knee disability, a right hip disability, and a lumbosacral strain with degenerative changes, all secondary to a right ankle condition, are not met. Accordingly, the claims on a secondary basis are denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a right knee disability, to include under a continuity of symptomology While the Veteran originally claimed that this disability was second to a right ankle condition, the Veteran also contends that this injury is related to his active duty service and that he has had symptoms since service. The Veteran has a current diagnosis of degenerative joint disease of right knee. Therefore, the first element of service connection is met. Further, the Veteran’s STRs note a complaint of knee pain with crepitus in June 1984 and he was given a diagnosis of chondromalacia and PFP syndrome. Therefore, the second element of service connection is met. Shedden, supra. The analysis now turns to whether the Veteran’s condition is etiologically connected to service. The Board notes that the majority of the VA examinations in the record explored the issue of whether the Veteran’s condition is secondary to his right ankle. As explained above, the Veteran is not connected for that disability; therefore, his right knee condition cannot be service-connected under that theory. However, the Veteran has made statements about his right knee disability at these examinations. In November 2009, the Veteran reported that he had had right knee pain for the prior 5-6 years. In April 2016, there was no diagnosable right knee condition. In June 2017, the Veteran had a diagnosis of degenerative arthritis and he said that his complaints started in 1984 due to his military training. In September 2018, the Veteran reported an injury in basic training, but that he recovered, yet he had problems throughout service. The September 2018 VA examiner gave the opinion that the Veteran’s right knee disability was less likely than not related to his military service because years of records report normal knee complaints. The Board also notes that opinion that the Veteran’s (ankle) arthritis condition was related to “post-discharge physical injuries and other risk factors, such as methamphetamine abuse.” The Board gives the September 2018 VA examiner’s opinion great probative weight as it is based on a review of the medical record and provides support for their conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Board finds that the Veteran has not demonstrated a continuity of symptomology since service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Veteran first applied for service connection in June 2009. The Veteran initially asserted that his right knee condition was second to his right ankle condition. It was not until October 2016, that the Veteran contended that his right ankle problems had persisted since service. The Board also notes that in November 2009, the Veteran reported that he had had right knee pain for 5-6 years prior. The Board also notes medical records that do not indicate a history of right knee complaints. As such, even though arthritis symptoms and history are entirely capable of lay observation, the Board finds that the Veteran’s claim that his right knee condition began during his period of active service is contradicted by the contemporaneous evidence. They are therefore not credible and unreliable. There is no other evidence of record suggesting that the Veteran’s right knee arthritis began during service. Therefore, continuity is not shown. In view of the above, the weight of the evidence is against the claim for service connection for a right knee disability. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a lumbosacral strain The Veteran contends that his current a lumbosacral strain with degenerative changes (back condition) dates back to his time in service when he had to roll heavy steel barrels and that activity took a toll on his back. While the Veteran has a current diagnosis related to his back, there is no evidence of an in-service incident or occurrence. The Veteran asserts that he had back pain while in-service, however there is no record of any complaints of any issues related to his back in his STRs. His separation examination is devoid of any musculoskeletal complaints. The Board notes that a June 2017 VA examination provides a diagnosis of “lumbar paraspinal tendonitis” which began in 1984. However, a review of the comments of that examination makes clear that the diagnosis is based solely on the Veteran’s reports to the VA examiner. Therefore, the diagnosis is given little weight because it does not provide support for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Veteran has provided contradictory information about the onset of his back pain. In November 2009, he stated that his back pain began 10-15 years prior, without an acute injury—5 years after he left service. In October 2016, he stated for the first time that his back pain began in service and had persisted since. As such, even though the symptoms and history of the Veteran’s back disorder are capable of lay observation, the Veteran’s claim that his back condition began during his period of active service is contradicted by the contemporaneous evidence. They are therefore not credible and unreliable. There is no other evidence of record suggesting that the Veteran’s back disorder began during service. Further, even if there was, there is no medical evidence to establish that his symptoms have continued since service. Therefore, continuity is not shown. In view of the above, the weight of the evidence is against the claim for service connection for a back disorder. Accordingly, the claim is denied. The evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock