Citation Nr: 1819960 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 13-12 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left foot condition. 2. Entitlement to service connection for a right foot condition. 3. Entitlement to service connection for a left ankle condition. 4. Entitlement to service connection for a right ankle condition. 5. Entitlement to service connection for a left knee condition. 6. Entitlement to service connection for a right knee condition. 7. Entitlement to service connection for a sinus condition. 8. Entitlement to service connection for a condition of the mucous membranes around the eyes. REPRESENTATION Appellant represented by: Ralph Bratch, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing conducted in October 2017. A transcript is of record. The Board notes that the Veteran has pending appeals for other claims pending at the RO, which are not yet certified to the Board. Thus, these appeals will be the subject of a later Board decision, if necessary. The issues of entitlement to service connection for a sinus condition and a condition of the mucous membranes around the eyes are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT A chronic condition of the feet, ankles, or knees was not shown in service or for many years thereafter, and the most probative evidence is against a finding that any current conditions of the feet, ankles, or knees is related to service. CONCLUSIONS OF LAW 1. The requirements to establish service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The requirements to establish service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The requirements to establish service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The requirements to establish service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The requirements to establish service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The requirements to establish service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active duty and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). The Veteran contends that he suffered injuries to his feet, ankles, and knees in the course of service duties as a swing arm trainer and parasailing trainer, or that his claimed disabilities of the feet, ankles, or knees are otherwise related to service. The Veteran also testified to having been transferred to training facilities in Washington State, and having been exposed to the excess cold while there. In a VA Form 9 submitted in April 2013 the Veteran argued that because these injuries occurred as consistent with the circumstances of his service, he should be service connected for them. The Veteran's service personnel record supports his account of having performed many parachute jumps in service. His service treatment records include no findings, complaints, or diagnoses of any conditions of the feet, ankles, or knees, and there are not findings of any conditions of these parts for decades following service. , December 2010 VA treatment records noted complaints of chronic bilateral knee pain and left ankle pain. Obtained x-rays revealed mild to moderate narrowing of the patellofemoral joints bilaterally and an avulsion fracture of the left anterior malleolus of indeterminate age. As a chronic knee, ankle, and foot disabilities were not shown in service or within the year following discharge from service, competent evidence linking current disabilities to service is needed to establish service connection. However, on this question, the only medical opinion addressing these issues is against the claim. The Veteran was afforded a VA examination in January 2013 addressing claimed conditions of the feet, ankles, and knees. At the examination the Veteran reported having performed frequent parachute landings as a pilot training instructor in service, including parasail jumps and swing landing training. The examiner noted that the Veteran's documented service position as a physiological training specialist did include use of these training apparatuses. The examiner concluded that the Veteran likely performed such repeated jumps in service as he had reported. The examiner observed the absence of any record of treatment for injuries related to these duties and absence of joint complaints upon service separation examination in April 1974. The examiner further noted that post-service records included no record of treatment for any conditions of the feet, ankles, or knees for over 30 years following service. Current findings included a left ankle peroneal rupture/tear as shown by MRI, but the examiner concluded that it was unlikely that such a condition would have been present for over 30 years. A specific right ankle disability was not found; x-ray was negative and the joint noted to be "unremarkable." The knees showed chondromalacia patella bilaterally and focal tendinopathy on the right, but the examiner observed that this would be unlikely to have been caused by microtraumas such as from parachute jumps over 30 years earlier. The Veteran's post-service occupations were noted to include construction and truck driving, which could result in joint difficulties. The examiner observed that joint pains were not documented in the record until VA treatment in 2010, while a history was noted of a laminectomy performed privately, with this injury having occurred at work. The Veteran also had a history of treatment for hepatitis C. The examiner thus concluded that the Veteran had access to medical care over the years following service, and hence would have received care for significant impairment of the joints if such care had been necessary. The examiner reviewed x-rays revealing no degenerative changes in the feet, ankles, or knees. The examiner then explained that if the Veteran had suffered "many microtraumas" to the joints in service, observable degenerative changes would be expected. The examiner concluded that it was not at least as likely as not that the Veteran's claimed conditions of the feet, ankles, and knees were incurred in service or otherwise causally related to service. Regarding the feet, the examiner observed that the Veteran suffered from plantar callus, but noted that this condition was not caused by parachute jumping. In a January 2014 addendum, a fee-basis examiner noted the Veteran's report of having to train in deep snow in Washington State and his belief that this caused his back and knee conditions. The examiner opined that cold weather exposure does not cause a back or knee condition. The Veteran in an April 2013 VA Form 9 asserts that a Miami VA Health Care System (HCS) physician found arthritic changes in both knees based on MRIs. Indeed, the Veteran submitted a December 2011 letter from the named physician informing that a review of the Veteran's recent MRIs of the knees revealed arthritic changes. However, the same physician in a January 2013 medical assessment lists bilateral chondromalacia of the knees, not arthritis. This assessment of chondromalacia is consistent with the findings of the January 2013 VA examiner. Similarly, a VA rehabilitation evaluation conducted in March 2012 including for complained-of knee pain reviewed MRIs and found that these showed chondromalacia and tendinopathy in the right knee and chondromalacia in the left knee, not arthritis. These are the same findings recognized by the February 2013 VA examiner. Thus, the weight of the medical evidence presented, including MRI findings, is consistent with the January 2013 examiner's findings, and against the presence of arthritis in the knees. The Veteran's then-representative in a February 2013 letter cited to medical literature supporting a link between the parachute jump activities and subsequent development of joint conditions of the lower extremities, particularly in the knees and the ankles. However, this treatise has not been associated with the facts of the Veteran's case by any medical professional, and the Board affords it minimal probative weight. See Mattern v. West, 12 Vet. App. 222 (1999). The Board finds the opinions of the VA examiners, which considered the specific facts and medical evidence associated with the Veteran's case to be significantly more probative than the general medical literature. In a September 2011 submitted statement, the Veteran reported that for over 30 years he had treated his left ankle condition by soaking the foot in "a bucket of hot water, epsom salt, and alcohol" when the condition flared-up, but reported that the condition over time became more easily aggravated to the point where it interfered with his work activities, including walking, standing, and carrying. He also reported that his knees had become impaired so that impairment interfered with activities such as squatting or prolonged walking. To the extent he is alleging that he suffered from his claimed disabilities, to include an avulsion fracture of the left ankle, in service and since that time, the Board does not find such assertion to be persuasive. In this regard, on the 1974 Report of Medical History prepared for separation, the Veteran specifically denied broken bones; arthritis, rheumatism, or bursitis; bone, joint or other deformity; lameness; "trick" or locked knee; and foot trouble. The Veteran did respond affirmatively to various other unrelated ailments, which suggests he did take care in answering the questions. In the discussion section, the Veteran mentioned the conditions for which he sought treatment, for those he did not, and for those he self-treated. However, there was no mention of complaints involving his feet, ankles, or knees. Accordingly, the Board does not find the Veteran's assertion of ongoing symptoms and self-treatment during and since service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). While the Veteran believes that his current disabilities of the feet, ankles, and knees are related to service and more specifically to parachute jumps or associated training or to cold exposure in service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of the claimed knee, ankle, and foot conditions are not matters capable of lay observation, and require medical expertise to determine. Accordingly, his opinions as to the diagnosis or etiology of his claimed conditions are not competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. Thus, with the preponderance of competent and credible evidence against a finding that a current condition of the feet, ankles, or knees was shown in service or for many years thereafter, or otherwise being causally related to service, service connection for these conditions is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a left foot condition is denied. Service connection for a right foot condition is denied. Service connection for a left ankle condition is denied. Service connection for a right ankle condition is denied. Service connection for a left knee condition is denied. Service connection for a right knee condition is denied. REMAND While further delay is regrettable, the Board finds that additional development is needed on the claims for service connection for a sinus condition and condition of the mucous membranes around the eyes. At his October 2017 hearing the Veteran testified that he was treated at the infirmary for his sinuses on several occasions. He explained that he had participated in altitude chamber flights which involved rapid decompression. He also testified that the service separation examination statement that he had sinusitis since childhood was erroneous, and that in fact he only had tonsillitis in childhood. He denied sinusitis on that form. On his service entrance Report of Medical History, the positive answer to prior ear, nose and throat trouble was reported as otitis and tonsillitis. As the prior VA medical opinion relied on a childhood history of sinusitis when providing a negative nexus opinion, the Board finds that an additional examination and opinion is needed. During his hearing, the Veteran's attorney noted that the bilateral eye condition "is really secondary to the sinusitis." Thus, that claim is intertwined with the sinus claim. Relevant ongoing medical records should also be requested. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for a sinus condition or for a condition of the mucous membranes around the eyes. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. The Veteran should be afforded a VA sinus examination to determine whether the Veteran suffers from a chronic sinus condition and whether such condition is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from a chronic sinus disability. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran sinus condition is a maturation/continuation of upper respiratory complaints in service or is otherwise related to service, to include the Veteran's report of participating in altitude chamber flights which involved rapid decompression. The examiner should provide an explanation for the opinion provided. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs