Citation Nr: 20060787 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 14-33 146 DATE: September 15, 2020 ORDER Entitlement to service connection/aggravation for a right knee disorder is denied. Entitlement to service connection/aggravation for a low back disorder is denied. Entitlement to service connection/aggravation for a left ankle disorder is denied. FINDINGS OF FACT 1. A right knee disorder was not noted on examination at entry into service; there was no manifestation of a right knee disorder during service; a current right knee disorder is not related to service. 2. A low back disorder was noted at entry into service; there was no in-service worsening of the pre-existing low back disorder during service; a current low back disorder is not related to service. 3. A left ankle disorder was not noted on entry into service; a left ankle disorder clearly and unmistakably predated service and was not aggravated by service; current arthritis of the left ankle is a natural progression of the pre-existing left ankle disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection/aggravation for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection/aggravation for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 3. The criteria for entitlement to service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from March 1969 to March 1971. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In April 2018, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board finds that its remand instructions were substantially complied with. The Agency of Original Jurisdiction (AOJ) attempted to obtain VA treatment records from 1975 to 1976, and from 1987 to 1989. The AOJ received a negative response to its request from the VA Phoenix Health Care System (Record 01/16/2020). See Stegall v. West, 11 Vet. App. 268 (1998). See also See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). 38 C.F.R. § 3.304(b) states likewise, but also states only such conditions as are recorded in examination reports are to be considered as noted. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (West 2014); 38 C.F.R. §§ 3.304, 3.306(b) (2019). Under certain circumstance, aggravation may be presumed. However, a pre-existing disease or injury will only be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity. The mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder became worse during service and then improved due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The usual effects of medical and surgical treatment in service, having the effect of ameliorating a disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). The term “clear and unmistakable evidence” has been defined by the United States Court of Appeals for Veterans Claims (Veterans Court) as evidence that cannot be misinterpreted or misunderstood, i.e., that is undebatable. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a right knee disorder. Entitlement to service connection for a low back disorder. Entitlement to service connection for a left ankle disorder. The Veteran is seeking service connection for multiple physical disorders on the basis that they were caused or aggravated by service. On the VA Form 9, the Veteran argued that his ankle got worse in the service because he sustained an injury in service two years after he had broken the ankle in a pre-service injury. His ankle will “go out and weakness ever since then.” The Veteran stated: “I never injured my knee before I came in service. The knee was injured while playing basketball for the unit.” He stated that his back was injured at the same time, when he fell on his knee playing basketball, another person fall on his back. He also believes that the knee aggravated his back more. He stated that he originally injured his back when he injured his knee (Record 09/16/2014). At the Board hearing, the Veteran testified that he had a back and knee problem prior to service. He got hurt playing football in high school and had a back and knee injury at the time of his service entry physical. He broke his ankle in a car wreck in 1968. “I had all these conditions before I [...] ever took a first physical.” He reported he had continuing problems with these injuries during service. The knee problem was diagnosed by VA in 1975 or 1976. He now needs both knees replaced (Record 03/10/2017). The Veteran’s brother-in-law testified that the Veteran reinjured his knee playing football in service. Service treatment records reveal that on examination, acceptance, and enrollment for service in May 1968, there is no reference to any then current knee or ankle disorders (Record 04/13/2011 at 7). Regarding the back, the examination reveals mild scoliosis and back strain. A report of medical history completed by the Veteran in May 1968, reveals a history of left ankle fracture at age 19, right patella fracture at age 16, and a history of back strain at age 16 (Record 04/13/2011 at 6). However, simple notation of a history of injury or disability prior to service does not serve to prevent attachment of the presumption of soundness. 38 C.F.R. § 3.304(b). Accordingly, the presumption of soundness attaches with respect to the left ankle and right knee, and the Board must address whether this presumption may be rebutted. The presumption of soundness does not attach with respect to the low back. The Veteran had a pre-existing low back disorder noted on entry. The Veteran therefore bears the burden of demonstrating a worsening of the back disorder during service. In May 1968, the Veteran was treated for complaint of a swollen ankle. The diagnosis was temporary traumatic arthritis of the left ankle with history of ankle fracture (Record 04/13/2011 at 41). X-rays revealed an old lateral malleolus fracture (Record 04/13/2011 at 44). A report of medical examination performed on February 11, 1971, at service separation, reveals normal clinical examination of the spine, feet and lower extremities (Record 04/13/2011 at 10). A physical profile rating of L-1 was assigned. A report of medical history completed by the Veteran on February 11, 1971, reveals a history of recurrent back pain, and trick or locked knee. There was no history of, or current, foot trouble (Record 04/13/2011 at 16). The Veteran was separated from service on March 26, 1971. He filed the current claim in March 2011, 40 years later. A VA Ankle Examination in March 2013 reveals a pre-existing bimalleolar fracture with resultant arthritic changes on the left ankle. It was noted that the Veteran entered the service at age 19. At age 17, he fractured the left ankle and was casted for 30 days. During the service, he had problems with recurrent ankle swelling and pain. He denied another injury during the service. He was discharged in 1971, and stated that, after that, he saw a private physician in Phoenix Arizona, but there are no records available from that provider. After that time (approximately 1971) he stated he was not exercising, he had no more problems, and he was not seen again. He was not being seen at that time, but complained of ankle swelling. The Veteran complained of daily discomfort. After a physical examination, the March 2013 examiner found no impact of the ankle condition on the Veteran’s ability to work. The examiner opined that the pre-existing left ankle disorder was not caused by, a result of, or aggravated by service. The rationale was that incomplete reduction of the previous fracture was noted by X-rays one year after entry into the service, and confirmed at this time. Arthritic changes were also noted at this time. The Veteran only noted problems with playing basketball, and stated he did not do this after discharge. There were 2 complaints of minor swelling shortly after enlistment. In this case, earlier onset of arthritic changes in an ankle with a previous incomplete reduction would be an expected natural progression of the pre-existing condition (Record 03/21/2013 at 1). A VA Back Examination in March 2013 reveals a diagnosis of degenerative disc disease, with date of diagnosis in 2007. The Veteran gave a history of a back strain at age 17. He stated he reinjured it in 1970 during the service while playing basketball. He related being seen about 3 times. After discharge, he did not play basketball and he had no further complaints. He stated he was not seen at this time, but x-rays were found in 2007 at the Phoenix VA. He complained of intermittent pain with weather changes. The examiner found no impact of the condition on the Veteran’s ability to work. The examiner opined that the pre-existing back disorder was not caused by, a result of, or aggravated by service. The rationale was that no visits were noted during the service for his lumbar spine. He related mild scoliosis and back strain prior to entrance. There are no treatment records after discharge until 2007. In this case, the current condition is the natural progression of the pre-existing condition (Record 03/21/2013 at 14). A VA Knee Examination in March 2013 reveals a diagnosis of bilateral degenerative joint disease of the knees. The Veteran stated he fractured his right patella at age 16 playing basketball. He was treated in a cast for about 4 weeks. He stated that, during the service, he reinjured it while in Arizona, and was seen for evaluation. After discharge, he stated he saw the same physician in 1971, followed by a considerable period of no treatment. He stated the right knee became worse about 10 years ago and the left about 18 months ago. He now sees Audie Murphy VA hospital for bilateral knee pain, worse on the right. The examiner found no impact of the condition on the Veteran’s ability to work. The examiner opined that the current disorder was not caused by, a result of, or aggravated by, service. The rationale was that the Veteran suffered an intra-articular fracture of the right patella. The natural history of this injury is a more rapid progression of age-related arthritic changes in the injured knee (the Veteran has age-related degenerative changes bilaterally). The more advanced findings in the right knee at this time are related to the prior patellar fracture, and not to the short period of active-duty service during which he had no knee complaints (Record 03/21/2013 at 28). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a low back disorder, right knee disorder, and left ankle disorder, have not been met. As noted above, a low back disorder was noted on entry into active service. The evidence in favor of a worsening of the disorder in service is scant. The Veteran has not described the nature of the worsening. He stated that someone fell on his back during a basketball game. However, this is not probative of a worsening of the pre-existing condition. On the other hand, the normal clinical findings for the spine at service separation is probative and persuasive evidence that his back disorder had not worsened during service. This is consistent with the assignment of a profile rating of L-1, which indicates that the Veteran possessed a high level of medical fitness regarding the lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency, and, consequently, was medically fit for any military assignment. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The medical opinion evidence regarding causation and aggravation of a back disorder by service weighs decidedly against the claim. The Veteran was offered the opportunity at the Board hearing to submit additional evidence to support his claim, but he has not done so. The only evidence in favor of worsening of the back disorder during service consists of the Veteran’s statement in the VA Form 9 that he had no pre-existing back disorder, but that he injured his back at the same time he injured his right knee, during a basketball game in service. However, this statement is directly contradicted by his hearing testimony, in which he definitively stated that he injured his back prior to service. The Board accords the Veteran’s hearing testimony more probative weight than the statement on the VA Form 9, as the hearing testimony is consistent with the other evidence, to include the service treatment records, and the Veteran’s various accounts are in conflict with each other. Accordingly, the Board finds that the pre-existing back disorder was not worsened during service, and therefore, aggravation has not been established. Turning to the right knee, the presumption of soundness attaches as there was no notation of injury or disability at service entrance. This therefore becomes a standard service connection claim, rather than a claim for aggravation. However, there is also no manifestation of a right knee disorder, or the incurrence of a right knee injury or disease, during service. The only evidence of manifestation comes from post-service statements by the Veteran and his brother-in-law, that he injured his right knee in service. Even this evidence is not consistent. The Veteran attributed the injury to playing basketball; the Veteran’s brother-in-law stated that he injured it playing football. When considered in the context of the Veteran’s inconsistent statements regarding the in-service injury (as with the back, the Veteran reported no pre-service knee injury on the VA Form 9: “I never injured my knee before I came in service” but contradicted this statement at hearing testimony), the Board finds that the lay evidence on this matter is unreliable. The credible evidence consists of the service treatment records, which do not substantiate a right knee injury, and which show normal findings for the lower extremities at service separation, as well as a profile rating of L-1 indicating that, with respect to the lower extremities (the feet, legs), the Veteran possessed a high level of medical fitness. The medical opinion evidence weighs decidedly against causation or aggravation of a right knee disorder during service. While the Veteran’s testimony may be competent to relate observable symptoms, it is not competent to relate a current right knee disorder, such as arthritis, to an injury in service, which is remote in time. Moreover, the current diagnosis is a bilateral condition. The Veteran has not described how his bilateral knee disorder could have been caused by an injury solely affecting the right knee. Accordingly, the Board finds that a right knee disorder is not related to service. Regarding the left ankle, a left ankle disorder was not noted on entry into service. The notation of a pre-existing disorder on the report of medical history does not serve as a notation at entry. Accordingly, the presumption of soundness attaches. The first prong of rebuttal appears to be met. The Veteran does not contest that he had a pre-existing ankle injury, and X-rays support the existence of an old fracture. Regarding whether there is clear and unmistakable evidence that the left ankle injury was not aggravated by service, the Board notes that the Veteran was treated for ankle complaints in service and was diagnosed with traumatic arthritis. This is the first reference to arthritis, and the only condition diagnosed with respect to the ankle in service. However, the service examiner described the arthritis as temporary. Moreover, the VA examiner found that arthritis would be an expected natural progression of the pre-existing injury. Accordingly, the Board finds that there is clear and unmistakable evidence that a left ankle injury both predated service, and that it was not aggravated beyond natural progression by service. In sum, the Board finds that a right knee disorder, a low back disorder, and a left ankle disorder, are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed left ankle disorder, low back disorder, and right knee disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.