Citation Nr: 19137059 Decision Date: 05/14/19 Archive Date: 05/13/19 DOCKET NO. 18-16 895 DATE: May 14, 2019 ORDER Entitlement to service connection for right knee arthritis is denied. Entitlement to service connection for left knee arthritis is denied. Entitlement to service connection for a right foot disorder, diagnoses as pes planus, is granted. Entitlement to service connection for a left foot disorder, diagnoses as pes planus, is granted. Entitlement to service connection for cirrhosis is denied. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for a head injury is remanded. Entitlement to service connection for an eye disorder is remanded. FINDINGS OF FACT 1. The Veteran's bilateral knee arthritis was diagnosed years after the Veteran's separation from service, was not incurred during service, and did not result from an injury, illness, or event that occurred during service. 2. The Veteran has bilateral pes planus that was incurred during his active duty service. 3. The Veteran's hepatitis C was diagnosed years after the Veteran's separation from service, was not incurred during service, and did not result from an injury, illness, or event that occurred during service. 4. The Veteran's cirrhosis was diagnosed years after the Veteran's separation from service, was not incurred during service, and did not result from an injury, illness, or event that occurred during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee arthritis are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310 (2018). 2. The criteria for service connection for left knee arthritis are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310 (2018). 3. The criteria for service connection for right foot pes planus are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for service connection for left foot pes planus are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 5. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 6. The criteria for service connection for cirrhosis are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1972 through January 1974. Service Connection 1. Entitlement to service connection for right and left knee arthritis. The Veteran claims entitlement to service connection for disorders of his knees. Although the evidence shows that degenerative arthritis was diagnosed and confirmed radiologically in both of the Veteran's knees in the mid-1990s, the evidence shows no etiological relationship between the degeneration in the Veteran's knees and his active duty service. The Veteran's claims for service connection for arthritis in his right and left knees are denied. The service treatment records show that the Veteran did not report any problems in either knee during his November 1972 pre-enlistment examination. A physical examination of the lower extremities conducted at that time was normal. The in-service treatment records show that the Veteran was treated for reported left knee pain on one occasion in June 1973. The subsequent service treatment records indicate no further knee-related complaints by the Veteran and reflect no ongoing treatment or diagnoses related to either knee. During an August 1973 examination conducted approximately four months before the Veteran's separation from service, the Veteran expressly denied having any problems in his knees. Again, a physical examination of the lower extremities was normal. Overall, the information contained in the service treatment records indicate that the Veteran's isolated in-service knee complaints resolved at some point during his active duty and show no evidence of chronic symptoms or impairment in either of the Veteran's knees during service. The post-service records show that the Veteran has been incarcerated since 1978 and that he has received periodic treatment for various right and left knee complaints since that time. During treatment in July 1978, he reported that he was experiencing left knee pain from injuries sustained while playing basketball. A physical examination conducted at that time showed poor left leg motion and pain. In July 1985, the Veteran reported right knee pain that began also while playing basketball. A right knee strain was diagnosed at that time. Records for subsequent treatment received by the Veteran in 1989 and 1994 document renewed complaints of right and left knee pain that occurred while the Veteran played basketball. Left knee x-rays taken in June 1994 showed for the first time that the Veteran had severe degenerative changes in that knee. Right knee x-rays taken in February 1997 showed extensive degenerative changes. Concurrent with those x-rays, records for treatment received by the Veteran from 1994 through 2018 document continuing complaints and findings of pain and swelling in both of the Veteran's knees secondary to degenerative joint disease. During a February 2018 examination, the Veteran described bilateral knee pain, swelling, and cracking. He stated that he experienced flare-ups of his symptoms after overexertion and that he had difficulty power walking or performing exercises that require running or jumping. A physical examination revealed decreased leg flexion and crepitus in both knees. X-rays of the knees revealed findings that were consistent with osteoarthritis. The examiner opined that the osteoarthritis in the Veteran's knees was less likely than not incurred during service or caused by an in-service injury, illness, or event. Although the examiner acknowledges that the Veteran was treated for left knee pain one occasion during service, she emphasizes that a specific diagnosis was not rendered and that the Veteran's reported pain symptoms apparently responded to conservative treatment. To that end, she notes that the Veteran did not report ongoing problems in either knee over the remainder of his service and during his separation examination. Moreover, the Veteran's separation examination did not note abnormalities in the Veteran's knees. In conjunction with the foregoing, the examiner states, the osteoarthritis in the Veteran's knees was first observed radiologically years after the Veteran's separation from service. Hence, the examiner reasons, the Veteran's age is the most compelling risk factor. Overall, the examiner concludes, the evidence does not substantiate the existence of an etiological relationship between the Veteran's current knee conditions and his active duty service. The Veteran theorizes in a December 2018 statement that he has rheumatoid arthritis in his knees that was aggravated beyond their natural progression by an abnormal gait caused by his flat feet. There is no evidence in the record, however, that the condition in either of the Veteran's knees is rheumatoid in nature. Although, as discussed below, service connection is warranted for the Veteran's pes planus the evidence does not show that the Veteran's pes planus has caused the Veteran to have an altered gait that would have resulted in or aggravated the degeneration in his knees. To the contrary, the records indicate that the Veteran remained active and played basketball, and indeed, the Veteran reported that the onset of the symptoms in his knees appeared to be associated with playing basketball after service. In conjunction with the foregoing inconsistencies, the Veteran is not competent to render a probative opinion as to the cause or etiology of the degeneration in his knees. In contrast, the negative opinion and rationale given by the February 2018 examiner is consistent with the information contained in the other evidence. The examiner's negative opinion and rationale are persuasive. The Veteran is not entitled to service connection for right or left knee arthritis. To that extent, this appeal is denied. 2. Entitlement to service connection for a right and left foot disorder The Veteran claims entitlement to service connection for disorders in his right and left foot. The evidence shows that the Veteran has pes planus that was first detected during his active duty service and that he has experienced chronic bilateral foot problems since that time. The Veteran's claims for service connection for right and left foot disorders are granted. Service treatment records show that a physical examination conducted during the Veteran's November 1972 pre-enlistment examination revealed no findings of any abnormalities in either of the Veteran's feet. In May 1973, the Veteran was treated for pes planus that was manifested by pain in the plantar surfaces of his feet. The Veteran was given arch supports to wear and was placed on a permanent physical profile for his flat feet over the duration of his service. The Veteran has described in his claims submissions and during a February 2018 examination that he has had chronic foot problems that date back to his period of active duty, but that he has simply coped with those problems without seeking regular treatment. Indeed, the post-service treatment records reflect that the Veteran was seen only on one occasion in June 1989 for pain in the bottoms of his feet. The aforementioned February 2018 examination confirmed the presence of pain in the Veteran's feet during use. The Veteran was wearing arch supports. The examiner diagnosed bilateral pes planus. Although the examiner opined that it is less likely than not that the Veteran's foot conditions were incurred during service, her stated rationale is based essentially on the fact that the evidence does not document frequent or ongoing complaints or treatment for the Veteran's feet. The examiner's rationale appears to ignore the Veteran's assertions that he has had chronic foot problems that date back to his active duty. For this reason, the examiner's opinion is incomplete and not entitled to significant probative weight. As mentioned, the service treatment records show that the Veteran had chronic foot problems caused by pes planus over the duration of his active duty service. In conjunction with the same, his assertions describing the subsequent chronicity of his foot symptoms during service are credible and are entitled probative weight. The preponderance of the evidence shows that the Veteran experienced the onset of pes planus in both feet during service and that he has had resulting chronic symptoms and impairment in his feet since that time. The Veteran is entitled to service connection for right and left foot disorders. To that extent, this appeal is granted. 3. Entitlement to service connection for hepatitis C. The Veteran claims entitlement to service connection for hepatitis C. In support of his claim, he appears to raise the theory that his hepatitis C resulted from a blood disorder and venereal disease that was treated during service. There is no probative evidence in the record that suggests that the Veteran's hepatitis C is related etiologically to an injury, event, or illness that was incurred during service. Service connection for hepatitis C is therefore denied. Contrary to the Veteran's assertions, the service treatment records document no specific hematologic findings or opinions that would suggest the in-service onset of hepatitis C or even cause an elevated risk for hepatitis C. The post-service treatment records show that the condition was first diagnosed following blood tests and studies conducted in late 2008 and early 2009, decades after the Veteran was separated from service. Although the treatment records show that the Veteran's treating physicians have been cognizant of the Veteran's reported history of venereal disease during service, they give no opinions relating the Veteran's hepatitis C to the Veteran's in-service venereal disease. The Veteran is not competent to provide a probative opinion relating his hepatitis C to in-service venereal disease and those assertions are not given any probative weight. The Veteran is not entitled to service connection for hepatitis C. To that extent, this appeal is denied. 4. Entitlement to service connection for cirrhosis. The Veteran also claims entitlement to service connection for cirrhosis. Similar to his claim for service connection for hepatitis C, the Veteran suggests in his claims submissions and lay statements that his cirrhosis may be secondary to a venereal disease contracted during service. The evidence shows that the Veteran's cirrhosis was first observed and diagnosed following abdominal ultrasounds that were conducted in 2015. Nonetheless, there is no probative evidence in the record that suggests that the Veteran's cirrhosis is related etiologically to an injury, illness, or event incurred by the Veteran during his active duty service. As such, service connection for cirrhosis is also denied. As mentioned, the Veteran was under treatment for hepatitis C since late 2008. Abdominal ultrasounds conducted in June 2015 as part of the Veteran's ongoing treatment for hepatitis C showed slight scalloping of the hepatic margins, which was interpreted as being consistent with cirrhosis. There are no opinions or other evidence in the record that suggests a link between the Veteran's cirrhosis and his active duty service, to include his in-service venereal disease. Again, the Veteran is not competent to offer a probative opinion as to the existence of such a relationship. As such, his assertions concerning the existence of such a relationship are not assigned any weight. The Veteran is not entitled to service connection for cirrhosis. To that extent, this appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a head injury and an eye disorder are remanded. The Veteran claims service connection for a head injury. His service treatment records document that he was treated in January 1973 for a concussion sustained after he was struck on his head by a door from a military vehicle. Subsequent service treatment records document periodic treatment for ongoing headaches. The Veteran contends that he has had chronic headaches that he believes are residuals associated with his in-service head injury. The post-service treatment records show that he has been treated only sporadically for reported migraines. Those records express no opinion as to whether those headaches are related etiologically to the Veteran's in-service head injury. In relation to the Veteran's claim for service connection for an eye disorder, the Veteran has raised the contention in an August 2017 statement that his current eye disorders are also related to his in-service head injury. The post-service treatment records show that he has been treated regularly for presbyopia and right eye primary open-angle glaucoma. The records relating to that treatment, however, also express no opinion as to whether the Veteran's eye disorders are related etiologically to the Veteran's in-service head injury. There is probative evidence in the record that raises the possibility that the Veteran's headaches and eye disorders are residual manifestations associated with his in-service head injury. Despite the same, the Veteran has not yet been given a traumatic brain injury examination to determine whether such a relationship exists. Such an examination should be afforded at this time. 38 C.F.R. § 3.159 (c)(4) (2018). The matter is REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his headaches and eye disorders. Records for relevant VA treatment received by the Veteran should be associated with the record. If such records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Thereafter, schedule the Veteran for a examination to determine whether the Veteran's headaches, presbyopia, and open-angle glaucoma are related etiologically to his active duty service, to include in-service head injury sustained in January 1973. The examining clinician should also determine whether there are other manifestations associated with the Veteran's in-service head injury. The claims file should be reviewed in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's headaches, presbyopia, and/or open-angle glaucoma: (a) was incurred during the Veteran's active duty service, or (b) resulted from an in-service injury, illness, or event, to include his January 1973 head injury. The examiner should also identify any other residual symptoms or manifestations that are associated with the in-service head injury. A complete rationale should be given for all opinions expressed. (Continued on the next page)   3. After completion of the above development, the issues remaining on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Lee 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.