Citation Nr: 20032946 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 13-33 388 DATE: May 12, 2020 ORDER Entitlement to service connection for lumbar spine disorder is denied. Entitlement to service connection for bilateral knee disorder is denied. Entitlement to service connection for bilateral foot disorder is denied. REMANDED Entitlement to service connection for breathing disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current lumbar spine disorder began during or was otherwise caused by his military service. 2. The preponderance of the evidence is against finding that the Veteran’s current bilateral knee disorder began during or was otherwise caused by his military service. 3. The preponderance of the evidence is against finding that the Veteran’s current bilateral foot disorder began during or was otherwise caused by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral knee disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral foot disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to October 1982. This appeal arises before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified before the undersigned. The transcript of this hearing has been associated with the claims file. In January 2016 and November 2017, these claims were remanded. The case is now again before the Board. The Board notes that the Board sent a letter to the Veteran and his representative advising them that additional VA treatment records had been submitted since November 2019 supplemental statement of the case (SSOC) and affording them the opportunity to submit a waiver of AOJ consideration. In February 2020, the Veteran responded requesting the case be remanded to the AOJ for review of the additional relevant evidence submitted since the November 2019 SSOC. See February 2020 VCAA/DTA Letter. However, on further review, it appears the aforementioned VA treatment records were considered by the November 2019 SSOC. As such, there is no prejudice to proceed in the adjudication of the claims. See 38 C.F.R. §§ 19.37(b), 20.1304(c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends that his in-service duties as a jet aircraft mechanic resulted in chronic conditions involving his lumbar spine, bilateral knees, and bilateral feet, which resulted from constant running around, bending over and crouching, and carrying heavy equipment and tools, and lifting heavy objects such as generators weighing over 100 pounds. See March 2015 Hearing Testimony. He indicated that he noticed that his feet began hurting during service, and he also had issues involving his back and knees in service. Entitlement to service connection for lumbar spine disorder. The question for the Board is whether the Veteran has a current lumbar spine disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of lumbosacral strain and degenerative arthritis of the lower back, and even considering the November 2017 Board remand’s finding that the Veteran’s reports during the May 2015 Board hearing regarding in-service wear and tear on his joints during active service that caused injury to his lower back was sufficient to establish the second element of Shedden, the preponderance of the evidence weighs against finding that the Veteran’s current lumbar spine disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are absent for complaints, treatment, or diagnoses of a lumbar spine disability. A review of the record post-service shows that a December 2008 VA treatment record noted the Veteran’s reports of occasional low back pain. See October 2012 CAPRI. A November 2010 VA treatment record noted the Veteran reports of low back pain for the past twenty years and that his back hurt while in service but that he never reported to sick call to get it checked. See id. However, a May 2015 VA treatment record noted the Veteran’s history of chronic back pain since 1999 and noted he has had very physical type jobs in construction and the trucking industry. See January 2016 CAPRI. Another VA treatment record in September 2016 noted the Veteran’s low back pain began in 2001 while he had been doing a lot of construction work, with insidious onset. See April 2019 CAPRI. The May 2015 VA provider noted no previous accidents, injuries, or traumas. The Veteran was initially provided a VA examination for his back in February 2016. See February 2016 C&P Exam. The VA examiner diagnosed chronic lumbar degenerative disc disease (DDD)/degenerative joint disease (DJD) with bilateral lower extremity radiculopathy. During the examination, the Veteran stated that he had always worked in a very physically demanding job since separation from active military service. The Veteran indicated that in the early 1990s, he began to note problems intermittently with his lower back, which have since worsened considerably. After examination, the examiner opined that it was less likely as not that the lumbar spine disorder had its onset during service or is otherwise related to service. The examiner also opined that it was less likely as not that this condition became manifest within one year of separation from active service. The examiner noted the service treatment records (STRs) contained no documentation of lower back problems and there was no documentation of any lower back problems in the claims file in 1983. After a November 2017 Board remand found the February 2016 VA examiner’s opinion was inadequate since the opinion did not appear to appropriately consider the Veteran’s testimony concerning his in-service strains and stresses, the Veteran was provided another VA examination in September 2019. See November 2017 Remand BVA or CAVC. During the September 2019 VA examination, the Veteran reported onset of low back pain about eight to ten years ago. See September 2019 C&P Exam. The examiner noted the Veteran’s reports of numerous jobs since service that all involved physical labor. After examination, the examiner opined that the nexus between the current diagnosis of lumbar strain and DDD/DJD of the lumbar spine has not been established and is not supported by the objective medical evidence. The examiner highlighted the Veteran’s very physical type jobs in construction and the trucking industry and explained that lumbar strain is a soft tissue injury that occurs acutely in relation to an immediate inciting event that resolves without residuals. The examiner noted that the Veteran did not have any documented back injury or back condition during the three years of service and that the Veteran had over 30 years of heavy physical labor type work after service. The examiner found that it is exceedingly rare to have DDD/DJD of the lumbar spine at the age of 22 and that DDD/DJD of the lumbar spine is related to the natural aging process and is no worse than anticipated based on age alone. As such, the examiner found the diagnoses of lumbar strain and DDD/DJD of the lumbar spine did not have its onset including from wear and tear while in service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his lumbar spine disorder is related to his active service, he is not competent to provide such an opinion. The issue is medically complex, as it requires specialized medical education that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the September 2019 VA examiner’s opinion, and especially after considering the contradicting reports by the Veteran as to the onset of the low back disorder, and the May 2015 and September 2016 VA treatment records noting the onset of low back pain as related to his physically laborious employment. Thus, the Veteran has not satisfied the necessary element of a nexus between service and his current back disability. 38 C.F.R. §§ 3.303(b). Because the Veteran is not competent to opine as to the etiology of his lumbar spine disorder and there is not an adequate, competent, probative medical opinion of record in support of the claim, there is no competent evidence that the Veteran’s current back disability is etiologically related to his active duty service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for this claim is not warranted. Entitlement to service connection for bilateral knee disorder. The question for the Board is whether the Veteran has a current bilateral knee disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of patellofemoral pain syndrome and degenerative arthritis of both knees, and even considering the November 2017 Board remand’s finding that the Veteran’s reports during the May 2015 Board hearing regarding in-service wear and tear on his joints during active service that caused injury to his knees was sufficient to establish the second element of Shedden, the preponderance of the evidence weighs against finding that the Veteran’s current bilateral knee disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are absent for complaints, treatment, or diagnoses of a knee disability. A review of the record post-service shows that initially, a November 2010 VA treatment record noted the Veteran’s reports that he was diagnosed with knee problems. See October 2012 CAPRI. The Veteran was provided a VA examination for his knees in February 2016. See February 2016 C&P Exam. During the examination, the Veteran stated he has had chronic increasing problems in his bilateral knees for the past ten years or so. After examination, the examiner opined that it was less likely as not that the bilateral knee disorder had its onset during service or is otherwise related to service. In support of the opinion, the examiner noted the STRs contained no documentation of knee problems and that the Veteran did not have knee DJD by x-rays at the time of examination. After a November 2017 Board remand found the February 2016 VA examiner’s opinion was inadequate since the opinion did not appear to appropriately consider the Veteran’s testimony concerning his in-service strains and stresses, the Veteran was provided another VA examination in September 2019. See November 2017 Remand BVA or CAVC. During the September 2019 VA examination, the examiner diagnosed patellofemoral pain syndrome in both knees and bilateral knee arthritis. See September 2019 C&P Exam. The Veteran reported onset of bilateral knee pain about eight to ten years ago. The examiner noted the Veteran’s reports of numerous jobs since service that all involved physical labor. After examination, the examiner opined that the bilateral knee disorder less likely than not had its onset during active service or incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that patellofemoral syndrome is a tracking disorder of the kneecaps and is an overuse syndrome and found that the Veteran’s overuse was related to activities after service. The examiner noted the Veteran’s mild osteophyte of both knees was no worse than anticipated based on age alone. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his bilateral knee disorder is related to his active service, he is not competent to provide such an opinion. The issue is medically complex, as it requires specialized medical education that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also notes that the Veteran has not specifically indicated continuity of bilateral knee symptomatology since separation from active service. Instead, during the February 2016 and September 2019 VA examinations, the Veteran indicated chronic knee problems for the past decade or so, over a decade after separation from active service. Treatment records associated with the claims file also have not indicated treatment or complaints related to the bilateral knee disorder for many years following separation from active service. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the September 2019 VA opinion. Because the Veteran is not competent to opine as to the etiology of his bilateral knee disorder and there is not an adequate, competent, probative medical opinion of record in support of the claim, there is no competent evidence that the Veteran’s current bilateral knee disorder is etiologically related to his active duty service. The preponderance of the evidence thus weighs against the Veteran’s claim for bilateral knee disorder. Entitlement to service connection for bilateral foot disorder. The question for the Board is whether the Veteran has a current bilateral foot disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of bilateral pes planus, hallux valgus, and degenerative arthritis of the feet, and even considering the November 2017 Board remand’s finding that the Veteran’s reports during the May 2015 Board hearing regarding in-service wear and tear on his joints during active service that caused injury to his feet was sufficient to establish the second element of Shedden, the preponderance of the evidence weighs against finding that the Veteran’s current bilateral foot disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are absent for complaints, treatment, or diagnoses of a foot disability. A review of the record post-service shows that initially, a June 2015 VA treatment record noted the Veteran’s reports of bilateral foot pain. See October 2012 CAPRI. The record noted an impression of pes planus, bilateral hallux valgus deformity with mild DJD in the first MP joints bilaterally with narrowing. The Veteran was provided a VA examination for his feet in February 2016. See February 2016 C&P Exam. After examination, the examiner opined that it was less likely as not that the bilateral foot disorder had its onset during service or is otherwise related to service. The examiner also opined that it was less likely as not that the foot DJD became manifest within one year of separation from active service. In support of the opinion, the examiner noted the STRs contained no documentation of foot problems and that the claims file did not contain any documentation of foot arthritis in 1983. After a November 2017 Board remand found the February 2016 VA examiner’s opinion was inadequate since the opinion did not appear to appropriately consider the Veteran’s testimony concerning his in-service strains and stresses, the Veteran was provided another VA examination in September 2019. See November 2017 Remand BVA or CAVC. During the September 2019 VA examination, the examiner diagnosed bilateral pes planus and bilateral hallus valgus with DJD. See September 2019 C&P Exam. The Veteran reported onset of his intermittent bilateral foot pain about eight to ten years ago. The examiner noted the Veteran’s reports of numerous jobs since service that all involved physical labor. After examination, the examiner opined that the bilateral foot disorder less likely than not had its onset during active service or incurred in or caused by the claimed in-service injury, event, or illness. In support of the rationale, the examiner noted that a review of the available medical records is silent for feet condition or injury while in service and that the earliest documentation of feet condition was a notation of bilateral feet pain on dorsal aspect in June 2015. The examiner found that the nexus between the diagnosis of bilateral pes planus and bilateral hallux valgus with degenerative arthritis and military service had not been established and is not supported by the objective medical evidence. Furthermore, the examiner explained that the Veteran’s mild bilateral pes planus and bilateral hallux valgus with degenerative arthritis are related to prolonged standing and natural aging process. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his bilateral foot disorder is related to his active service, he is not competent to provide such an opinion. The issue is medically complex, as it requires specialized medical education that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also notes that the Veteran has not specifically indicated continuity of bilateral foot symptomatology since separation from active service. Instead, during the September 2019 VA examination, the Veteran indicated chronic feet problems for the past decade or so, over a decade after separation from active service. Treatment records associated with the claims file also have not indicated treatment or complaints related to the bilateral foot disorder for many years following separation from active service. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the September 2019 VA opinion. Because the Veteran is not competent to opine as to the etiology of his bilateral foot disorder and there is not an adequate, competent, probative medical opinion of record in support of the claim, there is no competent evidence that the Veteran’s current bilateral foot disorder is etiologically related to his active duty service. The preponderance of the evidence thus weighs against the Veteran’s claim for bilateral foot disorder. REASONS FOR REMAND Entitlement to service connection for breathing disorder is remanded. The Veteran was provided a VA examination for his claimed breathing disorder in February 2016. See February 2016 C&P Exam. The examiner diagnosed mild chronic bronchitis. After examination, the examiner opined that it was less likely as not that this respiratory condition had its onset during service or is otherwise related to service. In support of the opinion, the examiner noted the STRs did not contain any documentation with regard to respiratory or breathing problems. After a November 2017 Board remand found the February 2016 VA examiner’s opinion was inadequate since the opinion did not appear to appropriately consider the Veteran’s testimony concerning his exposure to toxic substances, to include spray paint, due to inadequate respirator mask protection in tight and/or closed spaces, the Veteran was provided another VA examination in September 2019. See November 2017 Remand BVA or CAVC. During the September 2019 VA examination, the examiner found that there was no objective medical evidence regarding a diagnosis of chronic respiratory condition, to include chronic bronchitis while in service or after service and that the February 2016 VA examiner’s comment regarding mild chronic bronchitis was in error. See September 2019 C&P Exam. Nevertheless, the examiner noted that if the Veteran’s was found to have a diagnosis of chronic bronchitis, the nexus is not supported by the objective medical evidence. No rationale was submitted in support of this latter finding. The Board notes, however, that the Veteran’s claimed breathing disorder is not limited to bronchitis, but to any breathing disorder. See January 2016 Remand BVA or CAVC. A review of the record notes diagnoses of upper respiratory infection and emphysema during the relevant period on appeal. See October 2012 CAPRI, March 2016 CAPRI, and November 2019 CAPRI. The Board notes that although the Veteran may not have an active diagnosis at the time of examination, if the Veteran has a diagnosis for a respiratory condition at any time near or during the period on appeal, from March 2011, there is a current disability for VA purposes. Thus, a remand is warranted to obtain a VA opinion that considers all respiratory disorder diagnoses. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The matter is REMANDED for the following action: Return the September 2019 VA respiratory conditions examination to the examiner for review and addendum to the opinion or, if the examiner is not available or the AOJ determines that additional examination is required, schedule the Veteran for VA examination to determine the nature, extent, and etiology of his claimed respiratory disorder. The claims folder and this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. All studies deemed appropriate shall be performed, and all findings shall be set forth in detail. Following the review of the claims file, the examiner is then requested to respond to the following: a. Confirm and identify any respiratory disorder found to be present since the date of the claim (i.e., since March 2011). b. Is it at least as likely as not (50 percent or greater) that any respiratory disorder had its onset during active service or was the result of active service or any incident therein including exposure to paint and other noxious elements without proper protection (respiratory), as the Veteran described in the May 2015 hearing testimony? A complete rationale for all opinions is required, and the examiner must indicate that he or she reviewed the claims file, including the Veteran’s testimony as related to his claim in May 2015. The examiner should assume that the Veteran’s statements are credible for the limited purpose of providing the requested medical opinion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.