Citation Nr: 19152001 Decision Date: 07/03/19 Archive Date: 07/03/19 DOCKET NO. 13-34 279A DATE: July 3, 2019 ORDER Entitlement to service connection of bilateral leg/knee disability, to include aggravation of Osgood-Schlatter's disease, is denied. Entitlement to service connection of headache disorder is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s bilateral leg/knee disability, to include aggravation of Osgood-Schlatter's disease, began during active service, or is otherwise related to an in-service injury or disease. 2. The weight of the evidence is against finding that the Veteran’s headache disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection of bilateral leg/knee disability, to include aggravation of Osgood-Schlatter's disease, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection of headache disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from September 1972 to June 1974. These matters were previously before the Board of Veterans’ Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a February 2016 hearing. The transcript has been reviewed and is associated with the record. In November 2016, the Board remanded these matters to the RO for medical opinions addressing the nature an etiology of the Veteran’s bilateral knee arthritis and his headache disorder. Adequate medical opinions having been obtained, the Board finds the RO has substantially complied with the remand directives and therefore may proceed with appellate review. Service Connection Generally, to establish service connection of a present disability and a right to compensation, a Veteran must show: (1) a present disability; (2) an 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 nexus requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Bilateral leg/knee disability The Veteran has asserted that his bilateral knee disability is due to his service on the ventilation team aboard a ship. As a Boatswain, the Veteran claimed to have been involved in chipping [paint], crawling, kneeling, and crouching (2/11/2016 Hearing Testimony, p. 11). The Veteran has “known osteoarthritis in his knees” (5/06/2019 Medical Treatment Record - Non-Government Facility, p. 5) and as such, has a current disability, meeting the first element of service connection. Osteoarthritis was not annotated in the Veteran’s service treatment record. However, a left knee sprain was documented in April 1974 (6/23/2015 STR - Medical – Photocopy, p. 9). A pre-service history of “pain over anterior tibial tuberosity – Osgood-Shlatter's was noted (6/23/2015 STR – Medical, p. 29), and an annotation of abnormality with regard to his lower extremities was marked during his separation physical, and annotated with “Prominent tibial tubercle. [History] compatible with diagnosis of Osgood Schlatter disease since age 15-16 years of age” (6/23/2015 STR – Medical, p. 12). With regard to the Veteran’s preservice Osgood Schlatter disease the Board notes that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." 38 C.F.R. § 3.304 (b) (2017). If a preexisting disorder is noted upon entry into service, as here, the Veteran cannot bring a claim of service connection for that disorder. However, the Veteran may bring a claim for service-connected aggravation of that disorder. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). However, aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, 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). Thus, "a lasting worsening of the condition" that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In this case, a physical examination of the Veteran in September 2015 found that his developmental bilateral leg/knee condition had resolved and the physical examination did not “demonstrate evidence of Osgood-Schlatter deformity, bilateral knees” (9/30/2015 C&P Exam, p. 10). The examiner continued that the preponderance of medical evidence and expertise does not consider Osgood-Schlatter condition a risk factor for [degenerative joint disease] and there is no medical nexus between the Veteran’s knee current condition [and service]. The examiner opined that the Veteran’s preservice Osgood-Schlatter disease had not been worsened or aggravated beyond its natural progression by the Veteran’s active duty military service (9/30/2015 C&P Examination, p. 20). The post-remand, March 2019 addendum medical opinion provides that “[i]n this Veteran, etiology of arthritis of bilateral knees are his age and elevated BMI (obesity)” and that “[o]besity represents one of the most important risk factors for both the incidents and progression of [osteoarthritis]” (3/18/2019 C&P Exam, p. 3). The Board also notes that upon separation from service, while the Veteran’s prominent tibial tubercle was noted, no aggravation or additional symptoms pertaining to this disease were documented, and the Veteran was found physically qualified for release from active duty (6/23/2015 STR – Medical, p. 13). The Board finds the September 2015 opinion highly probative, as it was based on an in-person examination and full review of the claim file and medical history of the Veteran. Taken in conjunction with the Veteran’s service treatment records, and separation physical, and the addendum opinion that outlines the complete history of the Veteran’s bilateral knee disability and associating it with his age and obesity, the Board finds the Veteran’s Osgood-Schlatter disease was not worsened or aggravated beyond its natural progression by the Veteran’s active duty military service. With regard to the April 1974 knee sprain, the record fails to establish a nexus between the Veteran’s April 1974 in-service knee sprain, and his current osteoarthritis. The March 2019 addendum medical opinion indicates that the Veteran’s “[l]eft knee sprain in service was a condition of soft tissue; osteoarthritis of the knee is a skeletal joint condition; one is not the cause of or is related to, the other” (3/18/2019 C&P Exam, p. 3). Further, with regard to the nature and etiology of the Veteran’s arthritis, the examiner opined that “[i]n this Veteran, etiology of arthritis of bilateral knees are his age and elevated BMI (obesity)” and that “[o]besity represents one of the most important risk factors for both the incidents and progression of [osteoarthritis]” (3/18/2019 C&P Exam, p. 3). The Board finds the March 2019 medical opinion that it is less likely than not that the Veteran's bilateral knee arthritis was caused by or a result of or incurred in service to be of significant probative weight as it was based on a review of the Veteran's claim file and treatment records, provided a detailed history of the Veteran’s knee complaints, and provided a rationale for the opinion that included reference to medical literature. As such, the Board finds the preponderance of the evidence is against a finding of entitlement of service connection for a bilateral knee disability on a direct basis. The Board also considered whether the record supported presumptive service connection based on of continuity of symptomatology of the Veteran’s knee pain, as arthritis is a chronic disease. 38 C.F.R. § 3.309. During his hearing, the Veteran indicated that during service he received pills for knee pain at sick bay from a corpsman (2/11/2016 Hearing Testimony, p. 10), and answered affirmatively that from that time in service, he has had “difficulty with those knees through [to]day” (2/11/2016 Hearing Testimony, p. 12). While competent to testify with regard to continuity of symptomatology, the Board finds the Veteran’s testimony in this regard to be outweighed by other evidence of record, as discussed below. With the exception of the April 1974 left knee strain, the Veteran’s service treatment records are silent for knee pain. His discharge physical did not indicate any knee problems beyond the preservice Osgood-Schlatter disease. Furthermore, medical records first show documentation of arthritis [more than] 20 years after [his] separation from service. While not dispositive, the passage of time between service and post-service symptomatology is an appropriate factor for consideration. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Overall, then, neither the documented nor lay evidence shows continuity of symptomatology such as to enable a grant of service connection solely on this basis. In sum, the evidence of record preponderates against a finding that the Veteran’s present bilateral knee disability is the result of aggravation of his preservice Osgood-Schlatter disease, was caused by an in-service incurrence or injury, or manifested to a compensable degree within one year of service. As such, the Veteran’s claim of entitlement to service connection of bilateral leg/knee disability, to include aggravation of Osgood-Schlatter's disease, is denied. Headaches, to include as a result of inservice nasal surgery During his hearing, the Veteran asserted that after his in-service surgical procedure on his nose to alleviate frequent nose bleeds he began suffering from headaches, stating “actually, after the surgery I started having headaches” requiring him to “take Tylenol 650 milligrams for headaches” (2/11/2016 Hearing Testimony, pgs. 15-17). In addition to his hearing testimony, the Veteran has described his headaches as “vice-like pain above his eyes” that typically occur once a month and last from 30 minutes to one hour (3/21/2019 C&P Examination, p. 3). The Veteran has been diagnosed with acute intermittent tension headaches (3/21/2019 C&P Examination, p. 2), and therefore meets the first element required to establish entitlement to service connection, that being a current disability. The Board acknowledges the Veteran’s assertions that his headache pain began immediately following his February 1974 in-service surgery and has continued to the present. While he is competent to describe his headaches and to state when they began, any assertion that the headaches were caused by the surgery refers to an internal medical process beyond an immediately observable cause-and-effect, and therefore are beyond the competence of lay witnesses. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Veteran thus lacks the requisite knowledge or medical expertise to opine on the medical question of causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). On remand, a medical opinion was obtained to address whether the Veteran’s current headache disorder is related to the in-service February 1974 procedure (6/23/2015 STR - Medical – Photocopy, pg. 19). The March 2019 examiner reviewed the Veteran’s file, completed an in-person examination, and opined that it is less likely than not that Veteran's tension headaches are due to the submucous reconstruction during service. The examiner acknowledged the Veteran’s diagnosis with tension headaches but indicated that headaches secondary to epistaxis have not been established. The examiner noted the Veteran was last treated for submucous reconstruction in 1974 and indicated there is no literature to suggest tension headaches are directly caused by submucous reconstruction surgery with removal of sharp septal spur. The Board finds the March 2019 examiner opinion to be highly probative, as it is based on an in-person examination, a review of the Veteran's claim file and treatment records, and considers the existence, or lack thereof, of relevant medical literature in reaching the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). The Board acknowledges the Veteran's contentions of a continuity of symptomatology since service, however finds the Veteran’s retroactive reports of headache pain since the February 1974 surgery are not supported by his service treatment records. His separation physical/report of medical examination is also silent regarding headache complaints (6/23/2015 STR – Medical, pgs. 12-13). Further outweighing the Veteran’s claim of service connected headache pain, the Veteran reported squinting, stress, and hypertension during his March 2019 examination, which the examiner indicated may be the cause of his headaches. The March 2019 examiner ultimately opined that it is less likely than not that the Veteran’s tension headaches incurred during service or in the year following service (3/21/2019 C&P Exam, pgs. 3 and 7). As explained above, the Board finds the March 2019 examiner’s opinion highly probative and when taken in conjunction with the other evidence of record, preponderates against a finding that the Veteran began suffering from headaches within a year of leaving active service. (Continued on the next page)   As the record does not support a finding of nexus between the Veteran’s headaches and the in-service surgery or continuity of symptomatology, the elements of entitlement to service connection, either on a direct or presumptive basis have not been met. The Veteran’s claim of entitlement to service connection of headache disorder, to include as a result of in-service nasal surgery, is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.