Citation Nr: 20011968 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 15-35 818 DATE: February 12, 2020 ORDER Entitlement to an initial compensable disability rating for left lower extremity saphenous nerve injury is denied. Entitlement to an initial compensable disability rating for right lower extremity saphenous nerve injury is denied. Entitlement to a compensable disability rating for a left knee scar is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral foot conditions is denied. Entitlement to service connection for bilateral ankle conditions, to include as secondary to bilateral knee conditions and low back condition is denied. Entitlement to service connection thoracolumbar spine condition, to include as secondary to bilateral knee conditions is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left lower extremity saphenous nerve injury can be characterized as, at most, moderate in severity. 2. Throughout the period on appeal, the Veteran’s right lower extremity saphenous nerve injury can be characterized as, at most, moderate in severity. 3. The Veteran’s left knee scar is superficial, stable, nonpainful and does not cover an area of 144 square inches (929 square centimeters) or greater. 4. The evidence of record for and against the claim for service connection for tinnitus is in relative equipoise. 5. The preponderance of the evidence fails to establish the Veteran’s claimed foot disabilities are related to his active service. 6. The preponderance of the evidence fails to establish the Veteran’s current bilateral ankle disabilities, to include as secondary to bilateral knee conditions and low back condition, are related to his active service. 7. The preponderance of the evidence fails to establish the Veteran’s claimed thoracolumbar spine condition, to include as secondary to bilateral knee conditions, is related to his active service. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for service-connected left saphenous neuritis disability have not been met for any part of the rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code (DC) 8527 (2019). 2. The criteria for a compensable disability rating for service-connected right saphenous neuritis disability have not been met for any part of the rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code (DC) 8527 (2019). 3. The criteria for a compensable disability rating for a service-connected left knee scar, have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7804 (2019). 4. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2019). 5. The criteria for service connection for bilateral foot disabilities have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 6. The criteria for service connection for bilateral ankle disabilities have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 7. The criteria for service connection for a thoracolumbar spine condition have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to August 1993. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 1. Entitlement to an initial compensable disability rating for left lower extremity saphenous nerve injury 2. Entitlement to an initial compensable disability rating for right lower extremity saphenous nerve injury The Veteran seeks an initial compensable disability rating for his bilateral lower extremity saphenous nerve injury. He has been afforded an initial noncompensable disability rating under Diagnostic Code 8527, effective September 27, 2013. These disabilities will be addressed simultaneously, because they rely upon the same evidence and result in the same conclusion. Diagnostic Code 8527 allows for a noncompensable disability rating with mild to moderate paralysis of the internal saphenous nerve and a maximum 10 percent disability rating with severe to complete paralysis. In January 2014 the Veteran underwent a VA peripheral nerves examination. Based upon an in-person examination and a review of the Veteran’s claims file, the examiner diagnosed the Veteran with bilateral residual saphenous nerve injury. The Veteran described numbness of the lower extremities below the knees and feet bilaterally. This happened about once per week. It occurred while sleeping and sitting for more than one hour. His symptoms included mild paresthesias and/or dysesthesias and numbness of the bilateral lower extremities. Muscle strength testing was rated as 5/5 of bilateral ankle flexion, bilateral ankle dorsiflexion and left knee extension. It was rated as 4/5 for right knee extension. The examiner noted right lower calf/leg muscle atrophy. Reflexes of the left knee and bilateral ankles were normal. However, right knee reflex testing was rated as hypoactive. Sensory testing showed normal sensation for light touch at the bilateral upper anterior thigh and bilateral thigh/knee. Sensation was decreased at the bilateral lower leg/ankle and foot/toes. There were no trophic changes. His gait was analgic, but this was attributed to his service-connected right knee condition. The January 2014 examiner found the sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, posterior tibial nerve, anterior crural, obturator, external cutaneous of the thigh, and ilio-inguinal nerves all normal bilaterally. It was determined that the Veteran had mild incomplete paralysis of the bilateral internal saphenous nerves. Assistive devices included the constant use of a right knee brace for his service-connected right knee condition. In March 2016 the Veteran was afforded a second peripheral nerves examination. Based upon an in-person examination and a review of the Veteran’s claims file, the examiner continued the Veteran’s diagnosis of bilateral residual saphenous nerve injury. The Veteran described numbness and burning in the lateral and medial aspects of both legs from the knee to the ankle. There were no triggers identified and the symptoms lasted up to a couple hours. Medication offered partial relief. His symptoms included mild paresthesias and/or dysesthesias and numbness of the bilateral lower extremities. Muscle strength testing was rated as 5/5 of bilateral ankle flexion, bilateral ankle dorsiflexion and bilateral knee extension. There was no muscle atrophy present. Reflexes of the bilateral knees and bilateral ankles were normal. Sensory testing showed normal sensation for light touch at the bilateral upper anterior thigh, bilateral thigh/knee and foot/toes. Sensation was decreased at the bilateral lower leg/ankle. There were no trophic changes and his gait was normal. The only affected nerve group were the bilateral internal saphenous nerves, which had mild incomplete paralysis. Assistive devices included the regular use of a right knee brace for his service-connected right knee condition and elastic ankle braces. The functional impact involved missing a couple days of work per month due to these conditions and other service-connected disabilities. Based upon the medical evidence, the Veteran has mild incomplete paralysis of the left internal saphenous nerve and, therefore, a noncompensable rating is appropriate under Diagnostic Code 8527. The evidence does not establish paralysis of this nerve that would allow for a higher rating. The evidence also does not suggest that this disability would be better compensated under another diagnostic code. With respect to the right internal saphenous nerve, the Board observes that the Veteran was found to have atrophy of the right calf in 2014; however, his reflexes were normal with no tropic changes. In light of the foregoing, the Board concludes that the Veteran’s right lower extremities are consistent with moderate symptomatology. Nevertheless, after a review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a compensable disability rating for the either of the saphenous nerve disabilities throughout the period on appeal. The evidence of record demonstrates sensory involvement which at most, as noted above, warrants a finding of moderate paralysis. Despite the atrophy noted in the right calf, muscle strength testing of the ankle has been 5/5 throughout the course of the appeal and no worse than 4/5 for right knee extension. While his gait was analgic, this alteration of gait was attributed to his service-connected right knee disability. Thus, as the criteria for even a compensable disability rating are not met, and the Board finds that a 10 percent disability rating is not warranted under DC 8527. There is no indication that any other nerves are involved, and, therefore, no other diagnostic codes would allow for a higher rating. For these reasons, the Board finds that, for the entire rating period on appeal, the weight of the evidence is against a compensable disability rating for the bilateral saphenous nerve disabilities. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 3. Entitlement to a compensable disability rating for a left knee scar The Veteran contends that he is entitled to a compensable rating for his service-connected scar residuals post left knee donor tendon surgery. He is currently rated under Diagnostic Code 7802, effective June 1998. The Veteran filed for an increased disability rating in September 2013. Under Diagnostic Code 7801, scars not of the head, face or neck that are deep and nonlinear and cover an area or areas of at least six square inches (39 square cm) but less than 12 square inches (77 square cm) warrant a 10 percent rating. Higher ratings are warranted for scars covering larger areas. Id. Diagnostic Code 7802 provides for a maximum 10 percent rating for superficial and nonlinear scars over an area or areas of 144 square inches or greater. Note (1) states that a superficial scar is one not associated with underlying tissue loss. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2019). Diagnostic Code 7804 provides for ratings for superficial scars, which are either unstable or painful. Under this diagnostic code, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2019). Other scars are rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2019). In a February 1999 VA joints examination report, the examiner described a well-healed, vertical surgical scar of 8 centimeters corresponding to the distal portion of the patellar tendon on the left knee. The Veteran had full range of motion and 5/5 strength and had no significant laxity to varus or valgus stress. In May 1999 the Veteran underwent a VA scars examination. During the examination, the Veteran complained of left knee scar tenderness. The left knee scar was measured as 7 centimeters by 1 centimeter over the anterior left knee beginning at the distal pole of the patella and extending down to the tibial tubercle. There was no tenderness, adherence, ulceration or skin breakdown. Texture was smooth. There was no inflammation, edema or keloid formation. No disfigurement or limitation of function by the scar. In a January 2014 Statement in Support of Claim, the Veteran wrote that the surgical scar area of the left knee was painful. The Veteran was afforded a VA scars examination in June 2015. He was diagnosed as having one scar, which was on the trunk or extremities. It was described as a healthy scar over the left knee, and the Veteran had no complaints with the scar. He had mild pain over the patella on the left knee, but not over the scar. The scars were not extremely painful, unstable with frequent loss of covering of skin over the scar, pain and unstable, or due to burns. It was a vertical scar over the left patella. The examiner wrote that it was healthy, barely visible, non-tender and non-adherent. The scar was superficial and non-linear, measuring 6 by .2 centimeters. The approximate total area was 6.3 square centimeters. The Veteran was also afforded a June 2015 VA knee examination. It was noted that the Veteran’s scar was 6 by .3 centimeters. It was not painful or unstable. It did not have a total area equal to or greater than 39 square centimeters. During an October 2016 knee examination, it was noted that the Veteran’s knee scar was unchanged from the previous examination. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating for his left knee scar. The evidence of record shows that the Veteran’s scar, during the period on appeal, has been consistently described as superficial, non-painful, stable, healthy, and did not result in loss of skin covering the scar. Due to the fact that the scar is superficial, Diagnostic Code 7801, which relates to deep and nonlinear scars, does not apply. Furthermore, the Veteran does not meet the 10 percent rating criteria under Diagnostic Codes 7802 or 7804. The Veteran’s scar in June 2015 was measured as 6.3 square centimeters, which is far smaller than the 929 square centimeters required for a 10 percent rating under Diagnostic Code 7802. As noted above, the Veteran’s scar has been consistently described as stable and nonpainful since May 1999. Although there has been pain noted in the area, this pain has corresponded to the Veteran’s service-connected left knee condition. In sum, the most probative evidence demonstrates that a 10 percent rating is not warranted for the Veteran’s scar, residuals post left knee donor tendon surgery, for the entire period of appeal. For the reasons discussed above, the preponderance of the evidence is against an initial compensable disability rating. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303 (b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2019). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d) (2018). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2016). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310 (b) (2018); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses’ personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (West 2015). 4. Entitlement to service connection for tinnitus The Veteran has a current diagnosis of tinnitus; therefore, the first element of service connection is satisfied. The Board has conceded noise exposure while the Veteran was in service, because his DD-214 Certificate of Release from Active Duty shows that the Veteran served as a fighting vehicles infantryman. The question remains whether there is a nexus, or link, between the current shown tinnitus and the Veteran’s military service. The Veteran’s service treatment records (STR) are silent for complaints, diagnoses and treatment for tinnitus. The Veteran was afforded a VA examination in January 2014. Although the Veteran was diagnosed with tinnitus, the examiner determined that the Veteran’s tinnitus was less likely than not (less than 50 percent) related to his military noise exposure. Although the examiner conceded that the Veteran was likely exposed to hazardous noise in service, there were no complaints or treatment for tinnitus found in the Veteran’s STRs. During the January 2014 VA examination, the examiner wrote that the Veteran reported tinnitus since service after firing a missile with no ear protection. In July 2015 the Veteran was afforded a VA addendum tinnitus opinion. After a review of the Veteran’s claims file, the audiologist determined that it would be speculation to know what was causing his tinnitus. With regard to the tinnitus claim, unlike hearing loss disability, tinnitus (or, ringing in the ears) is the type of disability that the Veteran is competent to establish, on the basis of his own assertions (see Charles v. Principi, 16 Vet. App. 370 (2002)), and that, under certain circumstances, credible assertions of continuous symptoms may be sufficient to establish service connection (see, e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on the Veteran’s credible and competent testimony during the January 2014 VA examination regarding onset, the Board finds that the evidence is at least in relative equipoise regarding whether the current tinnitus began during service. Resolving any doubt in the Veteran’s favor, service connection for the Veteran’s tinnitus is granted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for bilateral foot conditions The Veteran seeks service connection for bilateral foots conditions. His September 1987 enlistment examination found his lower extremities to be normal. In October 1991 the Veteran sought treatment for his bilateral feet after carrying a heavy rucksack. A July 2014 treatment record noted tenosynovitis of the foot. In June 2015 the Veteran was afford a VA foot examination. Based upon an in-person examination and a review of the Veteran’s treatment records, the examiner diagnosed the Veteran with a bilateral foot disorder. During the examination, the Veteran complained of pain in his feet with prolonged walking. The pain was underneath the balls of his toes. Following the examination, the examiner concluded that the Veteran’s claimed bilateral foot conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. It was also determined that it was less likely than not (less than 50/50 probability) that the Veteran’s bilateral foot disability was caused by or secondary to status post right anterior cruciate and medial meniscus repair with instability or aggravated beyond its natural progression by his service-connected right knee condition. The June 2015 examiner reasoned, as per the Veteran’s records, that he had complaints of bilateral foot pain on once in-service in 1991. He has never complained of foot pain to his primary care physician from 1999 to 2014. He complained of foot pain only once to his orthopedist in July 2014. There was no evidence of continuity or chronicity of condition from 1991 onwards. There was also no evidence in literature to support that a knee condition was the same leg or contralateral leg will cause foot pain. No pathology was detected to render a diagnosis, because the Veteran had a normal foot examination. There was no evidence of pes planus or plantar fasciitis. The bilateral foot pain in-service was resolved. In March 2016 the Veteran underwent a VA foot examination and was diagnosed with bilateral foot disorder and bilateral forefoot sprain of unknow etiology. The Veteran reported that a private physician recommended orthotic inserts, but he had yet to obtain. He reported pain of the dorsal aspects of both feet aggravated by walking more than a couple hundred yards. Upon completion of the examination, the examiner concluded by writing that after a careful review of the records, interview, examination of the Veteran and search of the literature understanding of conditions under investigation, it was his opinion that the Veteran’s current right foot condition was less likely as not (less than 50/50 probability) caused by or a result of military service. It was noted that there was no documentation to suggest that the Veteran’s condition failed to respond to conservative therapy, became chronic or to suggest a causal relationship between a 1994 bruise of the soft tissue of the right foot and his current bilateral forefoot sprain. Soft tissue bruising generally resolves with days to weeks. The Board acknowledges that the Veteran contends that his foot disabilities were incurred in or caused by his service, or his right knee condition. However, the record does not demonstrate that the Veteran has special training or acquired any medical expertise. The Board thus finds that the Veteran is not competent to state that his bilateral foot conditions were either related to service or was caused by his service-connected right knee disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board may “weigh absence of contemporaneous medical evidence against the lay evidence of record”). Accordingly, less weight is accorded to the Veteran’s lay statements regarding etiology of his claimed foot conditions. Instead, the Board finds that the VA examiners’ medical opinions are the most probative evidence of record as they are supported by adequate rationale, were based on examination of the Veteran and review of the record and are consistent with the objective medical evidence. Thus, greater weight has been afforded to these medical opinions. Although the Veteran argued in a December 2016 Notice of Disagreement that the August 2016 private physician should be afforded greater probative weight, because the VA examiners were not physicians, the VA examiners were licensed medical professionals, competent to provide an opinion as to the existence and etiology of the Veteran’s bilateral foot conditions. There is no evidence that the examiners lacked the competency to render medical opinions. Moreover, the August 2016 opinion while addressing the Veteran’s knees and ankle pain, did not specifically address whether the Veteran’s foot disabilities were related to service. Therefore, because the VA examiners’ opinions have more probative weight, the preponderance of the evidence weighs against finding the Veteran’s bilateral foot conditions are entitled to service connection on a direct basis as well as secondary to the Veteran’s service-connected right knee disability. All in all, in weighing the evidence of record, it does not establish that the Veteran’s bilateral foot conditions were related to service or were caused or aggravated by his service-connected right knee disability. The Board, based on the aforementioned, concludes that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral foot disabilities must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. 6. Entitlement to service connection for bilateral ankle conditions, to include as secondary to bilateral knee conditions and low back condition The Veteran seeks service connection for bilateral ankle conditions, which he contends were secondary to his service-connected bilateral knee conditions, or his low back condition. His September 1987 enlistment examination found his lower extremities to be normal. In October 1991 the Veteran sought treatment for his bilateral ankles after carrying a heavy rucksack. A July 2014 treatment record noted that the Veteran’s left ankle was tender over the medial joint and the posterior tibial tendon. There was no lateral pain. A slight increase with forced inversion was also noted. His right ankle was tender over the lateral joint, peroneal tendons and with forced inversion. Sensation and motor were intact. He was diagnosed with over use synovitis, bilateral ankle sprains and minimal degenerative joint disease. It was also noted in the July 2014 treatment record that Veteran continued to run and aggravated his ankles in a race the prior month. In June 2015 the Veteran underwent a VA ankle conditions examination and was diagnosed with bilateral ankle tendonitis. The examiner noted the Veteran’s October 1991 in-service treatment for ankle pain, which was diagnosed as tendonitis, secondary to overuse. During the examination, the Veteran stated that he had been having pain in his ankles intermittently since 1991 after special forces training, carrying 90-pound rucksacks, and road marching. He had no pain at rest, but experienced pain with standing and walking. The Veteran also experienced mild swelling. Pain was relieved by ice packs and using braces. His knee medication also relieved his ankle pain. The examiner concluded that the Veteran’s bilateral ankle condition was less likely than not (less than 50/50 probability) caused by or a result of military service. It was also found that the Veteran’s bilateral ankle condition was less likely than not (less than 50/50 probability) secondary to, or aggravated beyond its natural progression, by his service-connected status post right anterior cruciate ligament and medial meniscus repair with instability. He reasoned that per the records, the Veteran complained of bilateral ankle pains only once while in the military in 1991. The Veteran never complained of ankle pains to his primary care physician from 1999 to 2014. He developed pain due to overuse, per a private orthopedic noted dated in July 2014. It was further noted that there was no evidence of continuity or chronicity of condition. There was also no evidence in literature to support that a knee condition in the same leg or contralateral leg will caused ankle pain. In May 2016 the Veteran was afforded a VA ankle examination. He relayed to the examiner that he initially injured his ankles in 1991 when he was carrying a heavy rucksack and they gave out. The Veteran stated that he was treated with Motrin. Several years prior to the examination they began giving out and he sought treatment at a clinic. He was treated with medication and physical therapy. Upon an in-person examination and a review of the Veteran’s claims file, the examiner diagnosed the Veteran with bilateral ankle tendonitis and bilateral ankle strain. The examiner concluded that the Veteran’s right ankle condition was less likely as not (less than 50/50 probability) caused by or a result of military service. Citing an October 1991 treatment record and medical literature, the examiner reasoned that it was generally accepted that overuse injuries are acute, not chronic conditions, that respond well to conservative measures. The Veteran submitted an August 2016 letter from a private physician, which noted that he had cared for the Veteran for almost three years. The physician noted the Veteran’s October 1991 in-service bilateral ankle treatment. The physician noted that following a July 2001 right knee arthroscopy the Veteran experienced left ankle pain. X-rays taken in March 2016 were unremarkable. Based upon a review of the Veteran’s records and treatment of the Veteran’s the physician diagnosed the Veteran with tenosynovitis of the right ankle and possible chondromalacia. Although the physician did not specifically address the Veteran’s left ankle diagnosis, he concluded that it was certainly quite possible that these injuries and progressive complaints occurring while he was in-service are the main cause of his right knee deterioration and also most likely his left knee and bilateral ankle pain. In October 2016 the Veteran was afforded a third VA ankle examination. His diagnoses of bilateral ankle tendonitis and strain of unknown etiology. In addition to the history provided to the prior two VA examiners, the Veteran reported that in 1995 while stationed in New York with the National Guard, he was moving a desk, and while descending stairs he fell and injured his right ankle. The Veteran also reported that a private physician, who had been treating him since 2013 or 2014 related his ankle conditions to his abnormal gait from knee surgeries. Upon an in-person examination and review of the Veteran’s claims file, the examiner determined that the Veteran’s bilateral ankle conditions were less likely than not (less than 50/50 probability) caused by or secondary to service-connected status post right anterior cruciate ligament and medial meniscus repair. The examiner found no new evidence submitted to contradict the prior medical examiner’s opinion. He was not aware of any medical literature that confirms that anterior cruciate ligament and medial meniscus repair alone in the absence of any other factors results in disability to or limitation of joints/articulations inferior or distal of the affected joint. The Board finds that the Veteran has a current diagnosis of bilateral ankle tendonitis, strain and tenosynovitis. Thus, the first element of service connection, a current disability, has been met. The Board also finds that the second element of service connection, an in-service injury or occurrence has also been met. The Board notes that the October 1991 STR indicating that the Veteran had ankle pain. However, as to the issue of nexus, a link between the current disability and in-service injury or illness, the Board finds the third element has not been met. The Board notes that the Veteran has been provided several VA examinations to determine the etiology of the Veteran’s current bilateral ankle disabilities, however none have provided an opinion that links his current ankle disabilities to his active service. All of the VA examiners addressed the Veteran’s complaints of ankle pain in October 1991 and how it related to his current ankle conditions. Furthermore, it was specifically addressed by the June 2015 VA examiner, that the Veteran’s ankle diagnoses were due to overuse and the March 2016 VA examiner found that overuse injuries are acute and not chronic. These findings were supported by the October 2016 VA examiner. It was also determined by the June 2015 and October 2016 VA examiners that there was no medical evidence to support that the Veteran’s ankle conditions were aggravated by his knee condition. Although the Veteran submitted a private opinion in support of his claim, the Board finds that the private opinion is not of equal weight to the three separate VA opinions, which did not find a nexus between the Veteran’s ankle conditions and his active duty service. While the private physician concluded that the Veteran’s bilateral ankle conditions were most likely due to his service-connected right knee condition deterioration, he only specifically addressed the Veteran’s right ankle. Furthermore, he did not provide a rationale for his conclusion beyond a review of the Veteran’s medical history and providing his conclusion. The Board acknowledges that the Veteran contends that his ankle disabilities were incurred in or caused by his service, or his bilateral knee and low back condition. However, the record does not demonstrate that the Veteran has special training or acquired any medical expertise. The Board thus finds that the Veteran is not competent to state that his bilateral ankle disabilities are either related to service or were caused by his service-connected right knee disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board may “weigh absence of contemporaneous medical evidence against the lay evidence of record”). Accordingly, less weight is accorded to the Veteran’s lay statements regarding etiology of his bilateral ankle disabilities. Instead, the Board finds that the VA examiners’ medical opinions are the most probative evidence of record as they are supported by adequate rationale, were based on examination of the Veteran and review of the record and are consistent with the objective medical evidence. Thus, greater weight has been afforded to these medical opinions. Although the Veteran argued in a December 2016 Notice of Disagreement that the August 2016 private physician should be afforded greater probative weight, because the VA examiners were not physicians, the VA examiners were licensed medical professionals, competent to provide an opinion as to the existence and etiology of the Veteran’s bilateral ankle conditions. There is no evidence that the examiners lacked the competency to render medical opinion. Therefore, because the VA examiners’ opinions have more probative weight, the preponderance of the evidence weighs against finding the Veteran’s bilateral ankle conditions are entitled to service connection on a direct basis as well as secondary to the Veteran’s service-connected right knee disability. All in all, in weighing the evidence of record, it does not establish that the Veteran’s bilateral ankle conditions were related to service or were caused or aggravated by his service-connected right knee disability. The Board, based on the aforementioned, concludes that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral ankle disabilities must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. 7. Entitlement to service connection thoracolumbar spine condition, to include as secondary to bilateral knee conditions The Veteran seeks service connection for a thoracolumbar spine condition, to include as secondary to bilateral knee conditions. As addressed below, the Veteran is service connected for bilateral knee conditions. During the Veteran’s September 1987 enlistment examination, the Veteran’s spine was noted as normal. In November 1996 the Veteran was involved in a motor vehicle accident and the Veteran was treated for back and neck pain. During a February 1999 VA joints examination, it was noted that the Veteran had thoracic compression fracture after his 1996 motor vehicle accident. In May 1999 the Veteran sought treatment for back pain after two days. A March 2002 psychiatry note showed that the Veteran reported a dull ache in his back. The Veteran submitted an August 2016 private medical opinion, which recounted the Veteran’s treatment for bilateral knee conditions. It also noted that the Veteran complained of back pain following a July 2001 right knee arthroscopy. Based upon three years of treatment of the Veteran and a review of the Veteran’s medical history, the private orthopedist concluded that his back pain could be causally related to injuries sustained in military duty. In October 2016 the Veteran was afforded a VA thoracolumbar spine examination and was diagnosed with lumbar spine strain of unknown etiology. During the examination, the Veteran recalled receiving treatment for his back between 1988 and 1993, probably due to his knee injuries. He did not recall a specific trauma or illness, but did recall heavy rucking. The Veteran was treated with Non-Steroidal Anti-Inflammatory Drugs (NSAID) and profiles. He recalled no physical therapy for his back. It was reported that the Veteran was currently experiencing 8-10/10 low back pain. There were no radicular symptoms or aggravating factors identified. The Veteran also recalled receiving injections in his low back in the late 1990s. He took Gabapentin and Advil with some relief. Based upon the in-person examination and a review of the Veteran’s claims file, the examiner determined that it was less likely as not (less than 50/50 probability) caused by or a result of his service-connected status post right anterior cruciate ligament and medical meniscus repair. The examiner wrote that he was not aware of any medical literature that confirms that status post right anterior cruciate ligament and medial meniscus repair alone in the absence of any other factors results in disability to or limitation of joints/articulations superior of the affected joint. The October 2016 examiner cited an article which indicated that only in instances of chronic and severe gait alteration limp is there the possibility of back pain. It was noted that the Veteran had normal gait on the date of the examination. A review of a 1998 x-ray showed that the Veteran had a wedge compression fracture of T7 and T8, with damage to T6. It was noted that these studies were done in 1998, five years after release from military service. Review of the STRs were not suggestive of back injury in military service. In January 2017 the Veteran was afford an addendum VA lumbar spine medical opinion. Since the October 2016 VA examination, the veteran submitted a statement reporting that he had an abnormal gait and claimed his condition was due to both of his knee conditions, with the August 2016 private medical opinion attached in support of his claim. After careful review of the records including previous interview and examination of the Veteran and search of the literature for current understanding of condition(s) under investigation it was the examiner’s opinion that the Veteran’s thoracolumbar spine condition was less likely as not (less than 50/50 probability) caused by or a result of the Veteran’s service connected status post right anterior cruciate ligament and medical meniscus repair with instability and/or patellofemoral pain syndrome with degenerative joint disease of the left knee. The January 2017 opinion discussed the August 2016 private treatment record in detail, specifically addressing the opinions and medical history offered by the private orthopedist. It was also noted that although the Veteran argued that he had an altered gait, treatment records from September 2008, October 2009, January 2014, June 2015, March 2016, June 2016 and October 2016 all supported the conclusion that the Veteran’s gait was normal. These records supported the October 2016 conclusion that the Veteran’s gait was normal and therefore did not result in his low back condition. The Board finds that the Veteran has a current diagnosis of a low back strain. Thus, the first element of service connection, a current disability, has been met. However, as to the issue of nexus, a link between a current disability and an in-service injury or illness, or service-connected condition, the Board finds the third element has not been met. The Board notes that the Veteran has been provided several VA examinations to determine the etiology of the Veteran’s current lumbar spine condition, however none have provided an opinion that links his current lumbar spine condition to his active service or service-connected knee conditions. Although the Veteran submitted a private opinion in support of his claim, the Board finds that the private opinion is not of equal weight to the two separate VA opinions, which did not find a nexus between the Veteran’s lumbar spine condition and his active duty service or service-connected knee conditions. While the private physician concluded that the Veteran’s back pain could be causally related to injuries in service, he did not provide a rationale for this opinion. Furthermore, he did not address the Veteran’s post-service thoracic compression fractures. Moreover, the August 2016 medical opinion does not address treatment records from September 2008, October 2009, January 2014, June 2015, March 2016, June 2016 and October 2016 that suggest there was not a continuous alteration of gait. The Board acknowledges that the Veteran contends that his lumbar spine condition was incurred in or caused by his service, or his bilateral knee conditions. However, the record does not demonstrate that the Veteran has special training or acquired any medical expertise. The Board thus finds that the Veteran is not competent to state that his lumbar spine conditions is either related to service or were caused by his service-connected bilateral knee disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board may “weigh absence of contemporaneous medical evidence against the lay evidence of record”). Accordingly, less weight is accorded to the Veteran’s lay statements regarding etiology of his lumbar spine condition. Instead, the Board finds that the VA examiners’ medical opinions are the most probative evidence of record as they are supported by adequate rationale, were based on examination of the Veteran and review of the record and are consistent with the objective medical evidence. Thus, greater weight has been afforded to these medical opinions. Although the Veteran argued in a December 2016 Notice of Disagreement that the August 2016 private physician should be afforded greater probative weight, because the VA examiners were not physicians, the VA examiners were licensed medical professionals, competent to provide an opinion as to the existence and etiology of the Veteran’s lumbar spine condition. There is no evidence that the examiners lacked credibility. Therefore, because the VA examiners’ opinions have more probative weight, the preponderance of the evidence weighs against finding the Veteran’s lumbar spine disability is entitled to service connection on a direct basis as well as secondary to the Veteran’s service-connected bilateral knee disabilities. All in all, in weighing the evidence of record, it does not establish that the Veteran’s lumbar spine condition is related to service or was caused or aggravated by his service-connected knee disabilities. The Board, based on the aforementioned, concludes that the preponderance of the evidence is against the claim and entitlement to service connection for lumbar spine disability must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Nelson 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.