Citation Nr: 1820802 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 05-24 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected bilateral pes planus. 2. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from February 1998 to March 1998. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama and a January 2010 rating decision of the Columbia, South Carolina RO. In the September 2004 rating decision, in pertinent part, the RO denied service connection for a chronic left knee condition. In the January 2010 rating decision, in pertinent part, the RO denied a TDIU. In an October 2005 statement (on a substantive appeal form but filed after the Veteran's substantive appeal), the Veteran requested a hearing before a Veterans Law Judge at the RO. In an October 2012 telephone conversation, the Veteran withdrew her hearing request. The Board therefore deems her hearing request withdrawn pursuant to 38 C.F.R. § 20.702 (e) (2017). In December 2012, August 2015, and May 2017 decisions, the Board remanded these issues for further development. FINDINGS OF FACT 1. A left knee disability initially manifested many years after separation from service and it is not shown to be etiologically related to service or to service-connected bilateral pes planus. 2. The Veteran's service-connected disabilities do not preclude her from performing gainful employment for which her education and occupational experience would otherwise qualify her. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service and was not caused or aggravated by service-connected bilateral pes planus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for an award of a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a January 2018 statement, the Veteran contended that her most recent VA examination of her knees was inadequate. Specifically, she contended that the examiner "rushed" the examination. In its August 2015 decision, the Board agreed for other reasons that this examination was inadequate and instructed the AOJ to afford the Veteran an addendum opinion, which it did in January 2016. In its May 2017 decision, the Board found that the January 2016 addendum opinion was also inadequate and again instructed the AOJ to afford the Veteran an addendum opinion, which it did in September 2017. Neither the Veteran nor her representative have contended that the September 2017 addendum opinion was inadequate. Neither the Veteran nor her representative have raised any other issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection - Left Knee Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Because the Veteran served on active duty for less than 90 days, the provisions for presumptive service connection for chronic diseases do not apply to her case. 38 C.F.R. § 3.307(a)(2017). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that she has a current left knee disability that is caused or aggravated by her service-connected bilateral pes planus. The record does not reflect, and the Veteran does not contend, that a left knee disability had its onset in service. The Veteran's service treatment records do not reflect any complaint or diagnosis of a left knee disability. Presumably due to the brevity of the Veteran's active duty service, the record does not contain a separation examination. In her November 2004 Notice of Disagreement (NOD), the Veteran contended that her bilateral pes planus, by affecting weight distribution, had caused stress to her left knee. During a January 2005 VA treatment appointment, the Veteran reported swelling that came and went with prolonged walking. On examination, the treatment provider found some left knee swelling but full range of motion and no active joint disease. The treatment provider's assessment included left knee arthralgia. The Veteran was afforded a VA examination in July 2005. The Veteran reported problems with her knees due to shifting her weight from the right foot to the left foot. The examiner diagnosed patellofemoral syndrome of the left knee with moderate decrease in range of motion. The examiner saw no radiological evidence of abnormality of the left knee. The examiner expressed an inability to opine as to whether the Veteran's left knee pain was secondary to her pes planus without resorting to mere speculation and noted that the Veteran's weight added stress to her knee joints and contributed to her knee pain. In its December 2012 decision, the Board found this examination report inadequate because the examiner did not offer a sufficient rationale for inability to provide an opinion. During an October 2007 private treatment appointment, the Veteran reported chronic bilateral knee pain and brought x-rays that showed very mild degenerative changes with spurring at the tibial plateau. The treatment provider diagnosed bilateral degenerative joint disease of the knees and bilateral knee pain. The Veteran was afforded an additional VA examination in April 2014. The examiner found "inadequate documentation to confirm left knee condition since August 2004" but went on to opine that it was less likely than not that the Veteran's current left knee condition was related to active duty service due to "inadequate documentation to indicate any chronicity or nexus between her military service and her current left knee condition." In its August 2015 decision, the Board found this examination report inadequate because it did not discuss evidence of left knee diagnoses during the period on appeal, did not provide an opinion on secondary service connection, and was contradictory in finding no knee disability but also a negative nexus for a knee disability. The Veteran was afforded an addendum opinion by a different VA examiner in January 2016. The examiner provided similar opinions to those in the April 2014 VA examination report and, in its May 2017 decision, the Board found this addendum opinion inadequate for the same reasons. The Veteran was afforded another addendum opinion by a different VA examiner in September 2017. This examiner noted the Veteran's past diagnoses of degenerative joint disease of the knee and patellofemoral syndrome of the knee. With regard to degenerative joint disease, the examiner noted that the major cause is aging but other causes can include a joint injury, joint malformation, a genetic defect in joint cartilage, being overweight, or having a job that stresses particular joints. With regard to patellofemoral syndrome, the examiner noted that common causes include overuse causing irritation under the kneecap, muscle weakness due to improper knee alignment, injury to the knee, and surgery. The examiner found nothing in the relevant literature to support a nexus between either of these disorders and pes planus, whether through causation or aggravation of a left knee disability beyond its natural progression. The Veteran is competent to report on matters observed or within her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case she is not competent to provide an etiology opinion for her left knee degenerative joint disease or patellofemoral syndrome. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent training or expertise that would make her competent to render an opinion on the etiology of any current left knee degenerative joint disease or patellofemoral syndrome or to express an opinion about when her symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran's opinion that her current left knee disability is etiologically related to her bilateral pes planus is not a competent opinion and it cannot be assigned any probative weight. Rather, the medical findings and opinions of the September 2017 VA examiner warrant greater probative weight than the Veteran's lay contentions. The September 2017 VA examiner reasoned convincingly that the Veteran's left knee degenerative joint disease and patellofemoral syndrome were not caused or aggravated by her bilateral pes planus. The examiner discussed the likely causes of each disorder, which did not include altered gait due to foot pain, and noted that there was no medical literature to support a nexus between either of these disorders and pes planus. No other treatment provider has found an etiological relationship between the Veteran's left knee disabilities and her pes planus. In addition, no VA examiner or treatment provider has found a direct relationship between the Veteran's left knee disabilities and her active duty service, the Veteran has never contended that such a relationship exists, and the record contains no other support for such a relationship. Because the preponderance of the evidence is thus against finding that the Veteran has a left knee disability that is etiologically related to her active duty service or is etiologically related to service-connected bilateral pes planus, entitlement to service connection for a left knee disability is denied. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes of meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's combined disability rating is 80 percent. Her bilateral pes planus is rated 50 percent disabling, her mood disorder is rated 30 percent disabling, her right hallux valgus is rated 10 percent disabling, her left hallux valgus is rated 10 percent disabling, and her bunionectomy scars have a noncompensable rating. The criteria for consideration of a schedular TDIU are met. A March 2005 VA treatment record released the Veteran to full work duty, so long as she wore comfortable supportive athletic shoes, did not stand for more than 45 minutes or walk for more than 20 minutes, and limited stair climbing. In March 2008 and again in May 2010, the Social Security Administration (SSA) found that the Veteran was not disabled. Although SSA does not evaluate disability in the same way as VA, this is evidence that VA must take into account in making its determination. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In a March 2008 statement, the Veteran reported that she had been unable to work due to her foot disabilities since May 4, 2005. Specifically, she reported that her foot disabilities prevented her from standing more than 30 minutes or walking more than a tenth of a mile without a break. In her July 2008 TDIU claim, the Veteran reported that she was unable to stand for long periods of time and that her disabilities had rendered her "housebound." She also reported that her medical appointments would require her to take at least 50 percent of the time off. The Veteran was afforded a VA examination of her feet in February 2009. The Veteran reported that she last worked as a desk clerk in 2005 and stopped because she could not stand for long periods of time. The examiner opined that "[f]unctional loss due to pain and functional impairment of the feet is moderately severe, 75%." In an April 2009 statement, the Veteran's spouse opined that the Veteran "will not be able to work again" due to depression, her foot disabilities, Raynaud's disease, and fibromyalgia. He reported that "[w]hen the attacks from Fibromyalgia set in, she can't do anything" and that her fibromyalgia caused migraines. In a January 2010 rating decision, in pertinent part, the RO denied service connection for Raynaud's disease and migraines. The Veteran has never appealed these determinations and has never claimed service connection for fibromyalgia. In a May 2009 record, a VA vocational rehabilitation counselor found that the Veteran's service-connected disabilities limited her from working around large crowds and stressful environments and from jobs that require prolonged standing and walking. The counselor also noted that the Veteran discontinued training "due to the fact that she was diagnosed with fibromyalgia, migraine headaches and optic neuritis." The Veteran reported that she had been told the temporary blindness in her left eye could result in permanent blindness. The counselor noted that the Veteran had been pursuing a degree online but was unable to continue due to temporary blindness in her left eye and worsening overall disabilities. The counselor found that the Veteran was "infeasible for employment and any further training at this time." In an October 2010 rating decision, in pertinent part, the RO denied service connection for loss of vision. The Veteran has never appealed this determination. In a January 2015 statement, the Veteran reported that she was unable to stand or work with crowds. The Veteran was afforded an additional VA examination of her feet in April 2015. The examiner found that the Veteran's service-connected foot disabilities impacted her ability to stand for long, walk, run, or climb stairs and that this would prevent manual work that required these abilities, but that these disabilities did not preclude sedentary employment. The Veteran was afforded a VA examination for mental disorders in April 2015. The examiner found that the Veteran's mood disorder did not cause symptoms severe enough to interfere with occupational functioning. The Veteran attributed her unemployment to problems with her feet. In a January 2018 statement, the Veteran reported that the condition of her feet had made it impossible for her to work. The preponderance of the evidence described above shows that the Veteran's service-connected disabilities, by themselves, do not prevent gainful employment. Of the medical professionals and counselors to opine as to the Veteran's employability, none have found that the Veteran is unemployable due to her service-connected disabilities. The May 2009 VA counselor's opinion that the Veteran was "[i]nfeasible for employment and any further training at this time" was based primarily on her fibromyalgia, migraines, and vision disability, none of which are service-connected. The counselor found that the Veteran's service-connected disabilities only placed limits on working around large crowds, stressful environments, or on jobs that require prolonged standing and walking. The other medical opinions of record that focus on the impact of the Veteran's service-connected disabilities have not found that they preclude sedentary employment. The Board also acknowledges the Veteran's report that she stopped working due to her foot disabilities, but the fact that the Veteran left her employment due to symptoms of a service-connected disability is not sufficient to show that she is precluded, by reason of service-connected disabilities alone, from securing and following substantially gainful employment consistent with her education and occupational experience. Additionally the evidence shows that multiple nonservice-connected disabilities contribute to her inability to work. The Veteran has consistently reported that she is unemployable due to pain in her feet but has not explained why this would prevent a job that does not require her to be on her feet. The Board finds that the Veteran's service-connected disabilities, including her foot disabilities, have had a serious impact on her employment (as reflected in her 80 percent overall disability rating) but do not totally preclude gainful employment for which her education and occupational experience would otherwise qualify her. The preponderance of the evidence is against the claim for a TDIU and the claim must be denied. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to a TDIU is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs