Citation Nr: 21002779 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-19 429 DATE: January 14, 2021 ORDER Entitlement to service connection for a bilateral-knee disorder is denied. Entitlement to service connection for a bilateral-foot disorder is denied. FINDINGS OF FACT 1. The objective medical evidence shows bilateral-knee disorder is not caused by an event, injury, or illness during active service. 2. The objective medical evidence shows bilateral-foot disorder is not caused by an event, injury, or illness during active service. 3. The objective medical evidence shows arthritis, as associated with bilateral-foot disorder, did not manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral-knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for bilateral-foot disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from August 1985 to June 1989 and from June 1989 to November 1994. In July 2014, the Veteran testified at a videoconference Board hearing before the before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was most recently remanded in September 2020. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for a bilateral-knee disorder. The service treatment records (STRs) show in a September 1989 re-enlistment examination the category of lower extremities was found to be normal. The post-service record shows a February 2014 VA primary care physician note, in which the Veteran reported “sometimes his knees will hurt.” In June 2014, the Veteran presented with low-back pain and reported the pain radiates to his left knee. In a June 2014 mental health note, he reported chronic pain in his back, legs and feet. In September 2016, the Veteran was afforded a VA examination for knee and lower leg conditions, in which the VA examiner diagnosed him with bilateral knee condition. She added a 2016 associated diagnosis of right and left-knee strain. The Veteran reported anterior knee pain for over 10 years. The September 2016 VA examiner noted available imaging studies did not document degenerative or traumatic arthritis. She opined that bilateral knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She explained in her rationale that there is no documentation to support onset during active duty, no indication of active treatment by the VA, no knee films, and no clinical evidence of onset during or due to active duty, from which she concluded that the Veteran’s “lay assertations are not substantiated by clinical evidence.” As originally directed in the Board’s April 2017 Remand, the prior VA examiner in April 2020 rendered an addendum opinion for bilateral-knee disorder after all relevant additional records had been obtained and reviewed. The April 2020 VA examiner opined that bilateral-knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She explained in her rationale that a full review of available STRs does not “confirm the presence of or evaluation for a right or left knee condition and there is no clinical evidence of onset within one year of separation of a spine condition [sic].” She added, “Veteran’s lay statement was considered, however, without medical evidence or records to establish onset and continuation of care there is no confirmation of a cause and effect relationship between active duty requirements and his current condition.” As indicated in the VA examiner’s two reviews of the medical evidence of record, the Board’s foregoing summary of the record shows no evidence which supports a causal connection with active service. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection. 2. Entitlement to service connection for a bilateral-foot disorder. The STRs show in a September 1989 re-enlistment examination the category of feet was found to be normal. However, the Veteran presented in March 1990 with an injured right ankle after paying basketball. He was diagnosed with right-ankle sprain and issued a splint. The treatment provider requested x-rays of the right ankle and right foot. Findings included no significant abnormality, bony structures were thought to be radiographically intact and “I see no definite evidence of fracture.” When examined two weeks later in April 1990, although edema was noted, range of motion had increased and the Veteran’s assessment was “[a]nkle sprain – resolved.” The post-service record shows in a May 2006 VA orthopedic note that the Veteran reported pain on the medial aspect of his foot after a fall from his truck, with his right ankle “breaking” most of the impact. In September 2016, the Veteran underwent a VA examination for foot conditions, in which the VA examiner diagnosed him with bilateral foot pain. She added a 2016 associated diagnosis of hallux valgus for both feet. The Veteran reported the onset of foot pain was during active service and he walks 1-2 miles per day, but experiences foot pain after a mile (3-5 times per week). The September 2016 VA examiner found mild-to-moderate symptoms for bilateral hallux valgus. She noted available imaging studies did not document degenerative or traumatic arthritis. However, although the September 2016 VA examiner found no documentation of arthritis, in that day’s x-rays, the radiologist’s impression included, “Mild hallux valgus seen bilaterally. No acute fractures or dislocation noted. There may be Early degenerative change at the left great toe IP [interphalangeal] and MTP [metatarsophalangeal] joints. No significant degenerative changes are noted bilaterally.” She opined that bilateral foot disorder as less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In her rationale, she explained that the STRs show no indication of a foot complaint, there are no treatment notes until 2004, in which the Veteran mentioned one of his feet during treatment for a fractured ankle, and there is no clinical treatment at present. As with her knee opinion, she added that the Veteran’s lay assertations are not substantiated by clinical evidence. The Board’s April 2017 Remand also originally directed the prior VA examiner to produce an addendum opinion for bilateral-foot disorder after all relevant additional records had been obtained and reviewed. In April 2020, the VA examiner opined that bilateral-foot disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She explained in her rationale that a full review of available STRs does not confirm the presence of or evaluation for a right or left foot condition and there is “no clinical evidence of onset within one year of separation of a spine condition [sic].” She added, “Veteran’s lay statement was considered, however, without medical evidence or records to establish onset and continuation of care there is no confirmation of a cause and effect relationship between active duty requirements and his current condition.” As indicated in the VA examiner’s two reviews of the medical evidence of record, the Board’s foregoing summary of the record shows no evidence which supports a causal connection with active service. The Board will briefly note here that because September 2016 x-rays indicated “[t]here may be [e]arly degenerative change at the left great toe IP and MTP joints” of the feet, that finding suggests at least the possibility of arthritis, which is considered by VA to be a chronic disease eligible for presumptive service connection under 38 C.F.R. § 3.309 (a). However, the record shows no manifestation of arthritis to a compensable degree within one year of separation from active service. As it was never identified in service or directly after, and putting aside the lack of medical evidence of treatment for any arthritis disorder at that time, it would be otherwise impossible to establish continuity of symptomatology based on the identification of symptoms during, directly after or continuing for a longer period after active service. Additionally, although the Veteran has claimed degenerative joint disease of his bilateral knees and testified to that that assertion at the June 2014 Board hearing, the medical evidence of record shows no findings establishing or suggesting right or left-knee arthritis. Therefore, the presumption of service connection for arthritis as a chronic disease associated with either bilateral-knee disorder or bilateral-foot disorder is not available to the Veteran. Lastly, the Board has carefully considered the Veteran’s June 2014 Board hearing testimony, as well as his reports to treatment providers, as thy appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. In his testimony, the Veteran asserted his belief that shipboard duties requiring great physical exertion and resulting occasionally in hard bumps and hits against equipment or bulkheads, as well as the pitching of the ship during sea trials and rough weather, caused degenerative joint disease in his knees and feet. He added that at present he has constant pain. As stated, the Veteran is competent to report symptoms relevant to the Veteran’s claim, as such things were personally experienced or observed by him. However, the record does not indicate that he possesses the highly specialized education, training and clinical experience to be able to determine, for example, whether degenerative joint disease resulted from any activities in service. Indeed, he testified that that description was given to him by post-service-treatment providers during treatment separation from active service, not during any medical treatment during active service. Moreover, as already stated by the VA examiner, there is no medical evidence in the record to support the Veteran’s inference that, because duties in service were physically demanding and the seas sometimes turbulent, later onset of sore knees and feet are expressly due those in-service experiences. The inferences he has drawn from what he experienced and observed simply fall outside the realm of his competency. The Board has assigned greater probative value to the examination findings of the VA examiner who conducted an in-person examination of the Veteran in September 2016 and reviewed the medical evidence of record again in April 2020 with any additional evidence obtained. Moreover, her opinions display a thorough knowledge of the Veteran’s medical history and their conclusions have exhibited consistency and sound clinical judgment. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the reasons stated and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection for bilateral-foot disorder, direct or presumptive. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.