Citation Nr: 21064821 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-19 341A DATE: October 21, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for bilateral plantar fasciitis is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. A left knee disorder was not manifest in service and is not attributable to service. 2. Bilateral pes planus was noted at service entrance and the preexisting pes planus did not undergo an increase in severity during service. 3. Plantar fasciitis was not manifest in service and is not attributable to service. 4. A sleep apnea disorder was not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 3. The criteria for service connection for bilateral plantar fasciitis are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. 4. The criteria for service connection for sleep apnea are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 4, 1991 to March 28, 1991. He was separated after less than a month of service due to a medical disorder. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were remanded by the Board in June 2019 to obtain private medical records. The Veteran submitted additional private medical records in July 2019. He also submitted a letter stating that there are no additional pertinent private medical records to be obtained. Accordingly, the Board finds that the requested development has been completed and the Veteran's claims are now ready for Board review. The Veteran has claimed service connection for two separate and distinct foot disabilities, pes planus and plantar fasciitis. Considering that they are distinct disabilities and that one existed prior to service and the other did not, in the interests of clarity the Board has separated the Veteran's foot claims into two distinct issues in this decision. 1. Entitlement to service connection for a left knee disorder. The Veteran submitted a claim for service connection for left knee meniscal tear in February 2015. On his August 2015 notice of disagreement (NOD) the Veteran asserted that he injured his left knee during combat training in February 1991. He said that he injured his left knee at the same time that he injured his groin. On his May 2016 VA Form 9 the Veteran pointed out that his service treatment records (STR) show treatment for his pulled groin and asserted that there should be documentation of the complaint for the left knee injury because both injuries occurred simultaneously while performing combat training. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service incurrence of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection for arthritis because the Veteran was not shown to have arthritis of the left knee within a year of discharge from service. Furthermore, the record indicates that the Veteran does not have arthritis of the left knee. 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). The Veteran's STRs show treatment for a groin injury but show no complaints or treatment related to the left knee. Post service medical records show complaints of left knee pain beginning in December 2014. A February 2015 MRI revealed the Veteran to have a small left knee medical meniscus tear. The Veteran's private physician noted that the Veteran asked if the tear could be due to an old injury during service. The physician stated that it was certainly possible, depending on the nature and documentation of the previous injury. On VA examination in February 2021, the Veteran reported that his left knee pain began in 1991 during physical training. He stated that his left knee condition had worsened over the years. The diagnosis was left knee strain status post meniscectomy. The VA examiner opined that the Veteran's left knee disorder was less likely than not incurred or caused by active service including due to any wear and tear injuries consistent with his active service and/or the right groin incident/injury during service. The examiner noted that the Veteran was not diagnosed with any left knee condition while on active duty. The Board has considered the Veteran's assertions that he has a left knee disorder that is related to an injury during service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the Veteran has a current left knee disorder that is a result of service, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even if the Veteran were competent to provide an etiological opinion, the Veteran's statements are still outweighed by the more probative medical evidence and the VA medical opinion. To the extent that the Veteran has alleged the presence of a chronic left knee disorder since discharge, the Board finds these allegations are undercut by the contemporaneous medical evidence in the service treatment records which are silent as to complaints of, diagnosis of, or treatment for, a left knee disorder and by the post service medical records that show no left knee complaints until December 2014. Here the more probative evidence, in the form of the contemporaneous medical records, clearly shows that the Veteran had no left knee complaints during service or for a number of years after discharge from service. Furthermore, the Board places greater probative weight on the findings of the VA physician who opined that the Veteran does not have a current left knee disorder due to service. The Board finds that the February 2015 private physician statement is of no probative value. The private physician's statement was speculative in nature. He said that it was possible for a knee disability to be related to service depending on the nature and documentation of the previous injury. In the way that he worded his statement, the examiner addressed possibility rather than probability. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). Accordingly, the preponderance of the probative evidence weighs against the claim. Consequently, service connection for a left knee disorder is not warranted. 2. Entitlement to service connection for pes planus. The Veteran's claim for service connection for flat feet was received in February 2015. On his August 2015 NOD the Veteran asserted that long distance running in combat boots, without any arch support, accompanied by wearing Alice packs and standing on hard surfaces for long periods, all contributed to the aggravation of his plantar fasciitis (pes planus) condition. On his May 2016 Form 9 the Veteran stated that his bilateral pes planus was injured and aggravated to cause the inservice injury of bilateral plantar fasciitis. He contended that by having flat feet he should be service-connected for the cause and aggravation of this condition. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 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; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. 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 C.F.R. § 3.306. In explaining the meaning of an increase in disability, the United States Court of Appeals for Veterans Claims (CAVC) has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The evidence shows that the Veteran's bilateral pes planus preexisted service, as pes planus was "noted" at service entrance. The July 1990 service enlistment examination report states that the Veteran had mild 1st degree pes planus. Accordingly, the presumption of sound condition as it relates to pes planus is not applicable. Because a preexisting pes planus was "noted" upon entrance to active service, service connection may be granted only if it is shown that the pes planus was aggravated by service, that is, if the preexisting pes planus was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims of preexisting disability, the veteran bears the burden of showing that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only if this burden is met does the burden of proof shift to VA to prove non-aggravation (by clear and unmistakable evidence). The Board finds that the weight of the evidence demonstrates that the preexisting bilateral pes planus did not increase in severity during active service beyond its natural progression, that is, was not aggravated by service. The Veteran was in service for less than two months and there are no foot complaints contained in the STR. Post-service private and VA treatment records also do not show any complaints or treatment for the Veteran's pes planus until June 2014. Such evidence does not indicate that there was a worsening of pes planus beyond its natural progression during service in either foot. Based on the above, the Board finds that the weight of the evidence demonstrates that the preexisting pes planus did not increase in severity during service beyond its natural progression - i.e., it was not aggravated by service; therefore, the criteria for service connection for pes planus, based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Accordingly, service connection for bilateral pes planus is not warranted. 3. Entitlement to service connection for plantar fasciitis. On his August 2015 NOD the Veteran asserted that the long distance running in combat boots, without any arch support, accompanied by wearing Alice packs and standing on hard surfaces for long periods, all contributed to the aggravation of his plantar fasciitis condition. On his May 2016 Form 9 the Veteran stated that he did not have plantar fasciitis prior to service. He asserted that pes planus was injured and aggravated to cause the inservice injury of bilateral plantar fasciitis. He contended that by having flat feet he should be service-connected for plantar fasciitis. The Board notes that service connection for pes planus has been denied. Consequently, the Veteran is not entitled to service connection for plantar fasciitis on a secondary basis, regardless of whether or not the Veteran's plantar fasciitis is secondary to pes planus. The Veteran's STRs show that the Veteran never complained of any foot problems during his two months of military service. The medical evidence of record clearly shows that the Veteran's bilateral plantar fasciitis first manifested many years after discharge from service. The post service medical records first show a diagnosis of plantar fasciitis in September 2009. In February 2021 a VA physician reviewed the record and examined the Veteran's feet. The VA examiner opined that the Veteran had no disability of either foot that is related to service. He noted that the Veteran had no foot complaints during service and no complaints of foot pain for many years after discharge from service. There are no medical opinions to the contrary. The Board has considered the Veteran's assertions that his bilateral plantar fasciitis is due to service. However, the Board finds the Veteran's lay statements are of no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific question in this case, whether the Veteran has a bilateral plantar fasciitis disability that was caused by service, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even if the Veteran were competent to provide an etiological opinion, the Veteran's statements are still outweighed by the more probative medical evidence including the VA medical opinion. As the weight of the competent evidence is against a finding that the Veteran's plantar fasciitis is related to service, the Board finds that the preponderance of the evidence is against the claim, and that the claim for service connection for bilateral plantar fasciitis must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for sleep apnea. The Veteran submitted his claim for service connection for sleep apnea in February 2015. On his August 2015 NOD the Veteran asserted that his sleep apnea began in service. He reported that he suffered symptoms of awaking abruptly during the night, insomnia, and interrupted breathing during military training. He said that he was not aware that he had sleep apnea at the time and that he did not make any complaints because his objective was to complete his military training. On his May 2016 VA Form 9 the Veteran asserted that he continued to suffer from sleep apnea symptoms until he was eventually diagnosed with sleep apnea and prescribed a CPAP machine for his condition. The Veteran has not been provided a VA examination with regard to his sleep apnea disorder. However, the Board finds that there is sufficient competent medical evidence on file to make a decision on the Veteran's claim. Although the Veteran has been shown to have had sleep apnea since June 2014, there is no competent evidence establishing that an event, injury, or disease occurred in service, or that the Veteran's sleep apnea disorder is in any way related to service. Accordingly, a medical examination is not required to adjudicate the Veteran's sleep apnea disorder claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board has considered the Veteran's assertions that his sleep apnea disorder first developed during service. However, the Board finds the Veteran's lay statements are of no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific question in this case, whether the Veteran first developed a sleep apnea disorder during service is a medical question and the Veteran does not have the requisite training to provide competent evidence regarding the etiology of his current sleep apnea disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case the Veteran was in service for less than two months. During that short time, he received treatment for a number of medical problems including anemia, a groin pull, and an upper respiratory infection, but there were no complaints or findings regarding a sleep disorder. The post service medical records reveal no sleep complaints until June 2013 when private medical records indicated possible sleep apnea. The private and VA treatment records subsequent to June 2013 reveal diagnoses and treatment for sleep apnea. None of these records indicate that the Veteran's sleep apnea is related to service. The evidence of record indicates that the Veteran did not develop sleep apnea until more than 20 year after discharge from service. None of the medical evidence indicates any relationship between the Veteran's current sleep apnea disorder and his military service. The Board does not find that the Veteran's report that he first developed sleep apnea during service to be probative. Given that the Veteran was in service for less than two months, that there is no probative evidence of his developing a sleep apnea disorder until more than 20 years after discharge, and as there is no credible evidence linking the current sleep apnea disorder to service, service connection is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.