Citation Nr: 20005490 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 18-49 890A DATE: January 24, 2020 ORDER Service connection for left ankle disability is denied. Service connection for left knee disability is denied. Special monthly compensation (SMC) based on aid and attendance for a dependent is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran’s left ankle disability was not incurred in or due to military service. 2. The preponderance of the evidence shows the Veteran’s left knee disability was not incurred in or due to military service. 3. The Veteran’s combined evaluation for compensation is 10 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for SMC based on the need of the Veteran's spouse for aid and attendance are not met. 38 U.S.C. § 1115; 38 C.F.R. §§ 3.4, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran serviced honorably on active duty from April 1953 to April 1955 and from October 1961 to August 1962. In August 2019, the Board remanded the appeal for additional development. Upon review, the Board finds that there has been substantial compliance with the prior remand directives and appellate review may proceed. At the time of the August 2019 Board remand, the issues on appeal included service connection for hemorrhoids. In an October 2019 rating decision, service connection was granted for hemorrhoids. This action constitutes a full grant of the benefits sought. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Service connection The Veteran seeks service connection for left ankle and knee disabilities. In most cases, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis with evidence of a continuity of symptomatology. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may be established if, in addition to a current disability, the veteran can demonstrate (1) that the condition was "noted" during service or within the year following separation from service; and (2) evidence of post service continuity of the same symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Left ankle disability The Board finds that the Veteran has a current left ankle disability. A treatment note from December 2016 states the Veteran has arthritis in his left ankle. The first element necessary to warrant service connection has been satisfied. As to the second element, in-service incurrence, the Veteran’s service treatment records (STRs) include an April 1955 examination which is negative for any findings concerning the left ankle. The only evidence of his left ankle being treated in the service is a single note from May 1962 stating that he had complained of left ankle pain and an ace bandage had been applied. The Board finds that this evidence is sufficient to satisfy the second element. The remaining element is medical nexus. The Veteran was afforded a VA examination in September 2019. He told the examiner that his left ankle condition began in 1953-1955 and was due to his work with artillery and marching. He denied any treatment for the condition. Following a physical examination and claims file review, the VA examiner opined that it was less likely than not that the Veteran’s left ankle disability was incurred in or caused by the in-service injury. The examiner rationalized that while there was documentation in the STRs of the Veteran experiencing left ankle pain, there was no evidence of a chronic condition or recurrent treatment. The examiner further noted that the Veteran has been out of service for several years without supporting treatment records to show continuity of symptoms after discharge. The examiner concluded that while the Veteran does have osteoarthritic changes in the left ankle, this is a multi-factorial condition for which aging in the major risk factor. The Board finds the opinion of the VA examiner to be highly probative and persuasive, as it is based on a review of the evidence of record and supported with reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Moreover, there is no competent opinion to the contrary. To the extent that the Veteran believes that a current left ankle disability is related to service, the etiology of his condition is not a matter capable of lay observation and requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 13472, 1376-77 (Fed. Cir. 20047). Thus, the Veteran's opinion concerning the diagnosis or etiology of his left ankle disability is not competent medical evidence. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that a current left ankle disability was incurred in or caused by service. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Left knee disability The Board finds that the Veteran has a current left knee disability. Medical records indicate he had knee replacement surgery in 2001. Treatment notes from March 2009 and December 2016 state he has arthritis in his left knee. The first element is met. Regarding the second element, in-service incurrence, the STRs do not reveal any complaint, treatment or diagnosis regarding the left knee. However, the Veteran has reported that his knee pain began in 1953-1955 due to wear and tear. As the Veteran is competent to report feeling pain, the Board finds that the second element has been met. The evidence responsive to the third element, medical nexus, includes a September 2019 VA examiner’s opinion that it is less likely than not that the Veteran’s left knee arthritis was incurred in service or caused by an in-service injury, event or illness. The examiner noted that the Veteran had reported in 1981 of occasional swelling of his left knee but there was no evidence of a chronic condition or recurrent treatment. The examiner further rationalized that the Veteran had been out of service for several years without supporting treatment records to show continuity of symptoms since discharge. This opinion weighs against the claim. In support of his claim, the Veteran submitted an October 2014 statement from a private physician who noted treating the Veteran since 1997 for multiple medical problems. The physician stated that the Veteran suffers from degenerative joint disease with knee pain and that “[t]hese degenerative changes could have been exacerbated by strenuous manual labor.” The Board does not afford the private physician’s statement any probative weight as to the issue of medical nexus of the Veteran’s left knee disability. First, the doctor’s use of the word “could” makes his opinion speculative. The Board observes that entitlement to service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102. A number of Court cases have provided discussion on this point of weighing medical opinion evidence. See Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a plausible claim); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection). Additionally, the Board notes that the doctor’s opinion is vague because it refers broadly to strenuous manual labor rather than to the actual work done by the Veteran during his period of active duty service. Although the Veteran has a current disability, the Board finds that service connection for left knee arthritis is not warranted. The preponderance of the evidence shows that the Veteran’s left knee arthritis is not due to his service. As such, the claim for service connection is denied. SMC based on the need for aid and attendance The Veteran seeks additional compensation due to the need for aid and attendance for his spouse, D.R. A veteran who is entitled to compensation and whose disability is rated not less than 30 percent shall be entitled to additional compensation for a spouse who is (i) a patient in a nursing home or (ii) blind, or so nearly blind or significantly disabled as to require the regular aid and assistance of another person. 38 U.S.C. § 1115(1)(E); 38 C.F.R. § 3.352. The Veteran is currently service connected for tinnitus, evaluated as 10 percent disabling and hemorrhoids, evaluated as noncompensable (0 percent). The combined disability rating is 10 percent. Unfortunately, the Veteran does not meet the threshold requirement of a 30 percent rating. Therefore, SMC based on aid and attendance for the Veteran’s spouse is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Mucklow, 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.