Citation Nr: 18136366 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 16-11 358 DATE: September 18, 2018 ORDER Entitlement to service connection for a bilateral knee disability, to include osteoarthritis, claimed as secondary to service-connected bilateral plantar fasciitis with calcaneal spurs, warts, and painful scars, is denied. FINDING OF FACT The most probative evidence establishes that the appellant does not currently have a bilateral knee disability, to include osteoarthritis, that manifested in service or within one year thereafter, or that is otherwise causally related thereto; nor is any current bilateral knee disability, to include osteoarthritis, causally related to or aggravated by a service-connected disability, to include service-connected bilateral plantar fasciitis with calcaneal spurs, warts, and painful scars. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. 1110, 5107 (2012); 38 C.F.R. 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the Army from October 1976 to October 1979 and from September 1990 to January 1992, including service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appellant filed a timely Notice of Disagreement (NOD), received in January 2013. A Statement of the Case (SOC) was issued in February 2016. A timely substantive appeal was received in March 2016. While the appellant requested a hearing before a Veterans Law Judge (VLJ) in Washington, D.C., on the March 2016 VA Form 9, his attorney reported in April 2016 correspondence that the appellant did not desire such a hearing. Virginia A. Girard-Brady was appointed as the appellant’s attorney in August 2013. Prior to certification of the instant matter to the Board, Ms. Girard-Brady withdrew her representation in July 2016. 38 C.F.R. §§ 14.631, 20.608. The appellant was informed via December 2016 correspondence that he did not have a representative but could appoint one and/or request a list of recognized Veterans’ Service Organizations (VSO) and representatives from VA. To date, no response has been received. Thus, the Board will presume he wishes to be unrepresented in the matter, and will proceed with adjudication. On his March 2016 substantive appeal, the appellant appeared to raise the issue of entitlement to service connection for a breathing disability. VA sent him a letter in September 2017 informing him that such a claim must be submitted on a standardized form. The appellant is advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the appellant wish to file a claim of entitlement to service connection for a breathing disability, he must file the claim on the standard form. Background In pertinent part, the appellant’s service treatment records include a May 1978 clinical note indicating that the appellant complained of knee pain and a history of trauma to the knee one month prior. However, examination was normal. Service treatment records are otherwise negative for complaints or abnormalities pertaining to the knees. Indeed, in his July 1979, his lower extremities were examined in connection with his separation from active duty and they were determined to be normal. On a Report of Medical History completed in connection with the separation examination, the appellant denied arthritis, rheumatism, or bursitis, bone, joint, or other deformity, lameness, and “trick” or locked knee. Likewise, the appellant denied knee problems in February 1983, December 1986, and May 1991 Reports of Medical History. Medical examinations in December 1986 and May 1991 revealed that the lower extremities were essentially normal, aside from foot problems. Post-service clinical records include complaints of and treatment for knee pain. See e.g. April 1995 Persian Gulf Registry examination. Additionally, April 1995 imaging studies of the bilateral knees revealed a sclerotic area measuring 4 cm by 3 cm in the left distal femur. The VA radiologist was unsure whether such represented a bone island. No other significant abnormalities were seen. The appellant was afforded a VA examination in September 2012. The claims file was reviewed. He was diagnosed with bilateral knee osteoarthritis. The appellant reported that he began to experience knee pain while on active duty and that his bilateral knees have been hurting for years. He wears hinged braces and walks with a straight cane. He endorsed intermittent locking. He has had various injections for his knee pain without success. A 2008 MRI was consistent for possible meniscal tear. He experienced mechanical problems at such time. However, he declined surgical intervention at the time. Currently, he experiences stiffness and soreness in the mornings. His knees feel somewhat better when he puts the braces on. Pain worsens by the end of the day. Swelling was very limited. The examiner opined that it was less likely than not that the appellant had a current knee disability which was incurred in or caused by his active service. It was noted that arthritis had been documented since 2008. While in active service, there was only one note of a left knee injury with a normal examination. The examiner explained that, if this had been a significant tear of a tendon or ligament, the examination would have been abnormal. Without treatment, rapidly progressive arthritis would have been expected. Rather, X-rays revealed that arthritis was mild in late 2011. An addendum opinion from the September 2012 VA examiner was obtained in September 2017. The claims file was reviewed. It was noted that the appellant contended that he developed bilateral knee arthritis as secondary to his service-connected bilateral plantar fasciitis with plantar calcaneal spurs and painful scars. The VA physician explained that, while abnormal mechanics at the feet is often associated with worsening of knee pain, there is no evidence that knee osteoarthritis is caused by foot disabilities. It was noted that there are treatments for symptoms of knee osteoarthritis which make use of foot orthoses. However, these have not been shown to alter the pathology of the knees. Aberrant mechanics of the feet can cause pain in osteoarthritic knees, but aberrant mechanics do not alter the underlying condition or its course. Moreover, records indicate that the appellant developed knee osteoarthritis after age 50, which is normal for aging. X-rays first revealed degenerative changes in October 2011. Thus, it was less likely than not that the appellant had a bilateral knee disability which was related to his service-connected bilateral plantar fasciitis with plantar calcaneal spurs and painful scars. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and other organic diseases of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Analysis Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the award of service connection for a bilateral knee disability. As an initial matter, while the appellant served in the Southwest Asia theater of operations, the Board notes that the law and regulations pertaining to service connection for undiagnosed illnesses resulting from the Persian Gulf War service are not for application as to the pending claim, because the appellant has diagnosed disabilities, namely osteoarthritis of the bilateral knees. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. It is not contended otherwise. The Board observes that service connection for muscle weakness due to undiagnosed illness was denied in a January 2001 rating decision. There is no evidence, nor is it contended, that arthritis was noted in service or present within one year of separation. Indeed, X-rays were normal in February 2008. As noted by the September 2012 VA examiner, October 2011 X-rays were taken and first revealed bilateral knee degenerative joint disease. While the appellant has recently competently reported continuing bilateral knee pain since service, his separation examinations in July 1979 and May 1991, from both periods of active service, were essentially normal with respect to the lower extremities. In addition, the contemporaneous evidence shows that although the appellant reported knee pain in 1978, he thereafter consistently denied knee problems, as noted in the Reports of Medical History discussed supra. The Board has assigned more probative weight to the contemporaneous records than to the remote recollections of the appellant. Moreover, the September 2012 VA examiner considered the appellant’s competent reports of continuity of symptomatology, reviewed the claims file, including service treatment records, and examined the appellant. The examiner explained that, if the May 1978 left knee injury had been a significant tear of a tendon or ligament, the examination would not have been normal. Further, without treatment, rapidly progressive would have been expected; and his arthritis was mild in late 2011. The Board finds that the VA examiner’s negative etiological opinion regarding the appellant’s diagnosed bilateral knee osteoarthritis on a direct basis is entitled to great probative weight as he had the opportunity to examine the appellant and the current pathology exhibited in both knees, as well as consider the clinical evidence. He also provided a rationale for his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no competent medical evidence to the contrary. Likewise, with regard to secondary service connection, the September 2017 opinion from the September 2012 examiner was based on the appellant’s competent reports of symptomatology, review of the claims file, and review of the September 2012 examination report. The examiner thoroughly explained that, while abnormal mechanics at the feet is often associated with knee pain, there is no evidence that aberrant mechanics of the feet alter osteoarthritis in the knees or its course. The examiner also observed that the appellant developed knee osteoarthritis after age 50, which is normal for aging. The Board affords this opinion great probative weight as well, as it thoroughly explains why the appellant’s bilateral knee osteoarthritis was not caused by or aggravated beyond the normal progression by his service-connected foot disabilities. Id. Again, there is no competent evidence to the contrary to indicate that the underlying osteoarthritis, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The Board has considered the recent holding by the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 866 F.3d 1356 (2018), that pain alone in the absence of an underlying pathology can be a disability if it reaches the level of a functional impairment of earning capacity; here, however, there is an underlying pathology, namely arthritis, which has not been shown to have been caused or aggravated by the service-connected foot disabilities. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA examination report and opinions to be of greater probative weight than the appellant’s lay assertions. However, as explained above, the preponderance of the evidence is against the appellant having a current bilateral knee disability, to include osteoarthritis, which was caused by or incurred in active service, or caused or aggravated by his service-connected bilateral plantar fasciitis with calcaneal spurs, warts, and painful scars. As the evidence preponderates against the 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 v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel