Citation Nr: 21066943 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-13 909A DATE: November 2, 2021 ORDER A rating in excess of 60 percent for a left knee injury, post/operative knee replacement is dismissed. Service connection for a bilateral foot disorder is denied. Service connection for a low back disorder is denied. Service connection for right knee disorder is denied. Service connection for left ankle disorder is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1978 to January 1985. 2. During a July 2021 hearing before the Board, the Veteran indicated his intent to withdraw his claims for a rating in excess of 60 percent for a left knee disability. 3. Bilateral pes planus was noted at entrance to service and pre-existed service; it is neither proximately due to nor aggravated by his service-connected disabilities and was not aggravated during service. 4. Calcaneal spurs were not show in service and the current diagnosis is not causally or etiologically related to service or to a service-connected disability. 5. Back complaints were shown in service, but symptoms were not shown to be chronic; symptoms were not continuous since service and were not shown to a compensable degree within one year of service. A low back disorder, diagnosed as arthritis of the thoracolumbar spine, is not causally or etiologically related to service or to a service-connected disability. 6. A right knee disorder, diagnosed as right knee arthritis, was not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnosis is not causally or etiologically related to service or to a service-connected disability. 7. A left ankle disorder, diagnosed as left ankle strain, was not shown in service, is not causally or etiologically related to service or to a service-connected disability. 8. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The appeal as to a rating in excess of 60 percent for a left knee injury, post/operative knee replacement is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2021). 2. The criteria for service connection for a bilateral foot disorder are not met. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2021). 3. A low back disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2021). 4. A right knee disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2021). 5. A left ankle disorder was not incurred in service and is not secondary to a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2021). 6. The criteria for the grant of a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at a July 2021 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2021 hearing, the Veteran testified before the undersigned that he sought to withdraw the claims for a rating in excess of 60 percent for a left knee disability. He was informed that his appeal was being discontinued and no further action would be taken. No further correspondence was received from the Veteran asserting that he did not understand the consequences of the withdraw. Based on the above, he expressed his intent to withdraw the claims in July 2021 and was adequately informed by VA in understandable terms the consequences of the withdraw. As such, the claim is withdrawn. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Bilateral Foot Disorder The Veteran contends his various bilateral foot disorders are related to service. Alternatively, he contends they are secondary to his service-connected left knee disability. Therefore, both direct and secondary service connection will be addressed. In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a disorder is noted, the question is whether it was aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. 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; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Turning first to direct service connection, the record reflects that pes planus and calcaneal spurs were diagnosed in June 2013 VA examination. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to pes planus, a review of the service treatment records (STRs) reveals that pes planus was noted on the March 1978 entrance examination. Accordingly, the presumption of soundness does not attach, and the claim may only be considered on the basis of aggravation. To that end, the STRs show no symptom reports, medical assessments or other manner of suggestion of foot complaints during service. No other foot disability (aside from pes planus) was noted on the Veteran's March 1978 service entrance examination report or elsewhere in the STRs. There is no evidence of any manifestation or diagnosis of any foot disability (aside from the March 1978 note of pre-existing pes planus). Based on the above, the medical evidence does not support a finding that pes planus was aggravated by service. While pes planus existed prior to enlistment, it did not worsen in-service. As it did not increase in severity during service, the medical evidence does not support the appeal on the basis of aggravation. As to calcaneal spurs, the STRs are absent of complaints of, findings for, or a diagnosis related to calcaneal spurs. As such, the medical evidence does not support direct service connection. Turning to secondary service connection, the first element is met as the Veteran has been diagnosed with pes planus and calcaneal spurs. In addition, he has been service connected for a left knee disability since July 1994. As such, the first and second elements of secondary service connection are met. As to nexus, in a June 2013 VA examination, the Veteran reported a history of bilateral foot pain for many years. He reported having been seen by podiatry and he was told that he had flat feet and was given orthotics. He indicated experiencing chronic pains in his feet with prolonged walking and standing. The examiner diagnosed the Veteran with flat feet and calcaneal spurs. The examiner opined that it was less likely than not that any foot condition was related to the service-connected left knee disability. The examiner reasoned that the Veteran's foot disorders were more likely than not related to normal age progression, deconditioned state, and past physical occupation as a plumber for 34 years. Further, a review of his VA treatment record and all private medical records associated with the file fails to show that a nexus between the bilateral foot disorder and the service-connected left knee disability. As such, the medical evidence does not support service connection on a secondary basis. Low Back The Veteran has claimed that a back disorder was caused or aggravated by a service-connected disability. Direct, secondary, and presumptive theories of entitlement have been claimed by the Veteran or raised by the record, so each will be analyzed in turn. Turning to the evidence, the first element of service connection a current disorder is met, as the Veteran was diagnosed with mild degenerative changes of the lumbar spine in a November 2011 X-ray and confirmed by the June 2013 VA examiner. As such, the first element for all theories of entitlements is met. As to in-service incurrence, the STRs reflect that the Veteran complained of low back pain and he was diagnosed with low back strain in October 1983. A subsequent October 1983 STR for physical therapy indicated that he stated that the L/S S/I region "feels fine at this point." The clinician noted full range of motion without symptoms of pain/ discomfort or tenderness. There is no further mention of lower back pain in the STRs. Further, the Veteran's February 1983 periodic Report of Medical Examination reflected a normal clinical evaluation for the spine. A health questionnaire for dental treatment, dated March 1984, shows that the Veteran did not report arthritis/ rheumatism, which was a check-listed disorder. As such, the medical evidence does not show chronic back disorder during service. Therefore, the second element is not met, and the medical evidence does not support service connection on a direct basis. Turning to secondary service connection, the first element is met as the Veteran has been diagnosed with arthritis of the lumbar spine. In addition, he has been service connected for a left knee disability since July 1994. As such, the first and second elements of secondary service connection are met. As to a medical nexus, at the June 2013 VA examination, the Veteran reported a history of back pain for the past 4 years. He denied any injuries or trauma. He stated that the pain was chronic, worse with prolonged walking, standing and stair climbing. The VA examiner diagnosed arthritis of the lumbar spine. The examiner opined it was less likely than not that any current back condition was related to the service-connected left knee. He explained that it was more likely than not related to normal age progression, deconditioned state, and past physical occupation as a plumber for 34 years. Further, a review of the VA treatment record and all private medical records associated with the file fails to show that a nexus between the low back disorder and the Veteran's service-connected left knee disability. As such, the third element of service connection is not met, and the medical evidence does not support service connection on a secondary basis. Next, arthritis is considered a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, while degenerative changes have been shown, arthritis did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established. Specifically, while the Veteran's service ended in 1985, the record does not show evidence of degenerative changes to the lumbar spine until a November 2011 X-ray, some 25 years later. As such, degenerative arthritis did not manifest itself to a compensable degree in service or within the one-year presumptive period. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, a February 2012 VA treatment note reflected that the Veteran complained of low back pain. Further, on the June 2013 VA examination, he reported a history of back pain for the past 4 years. Even considering symptoms as early as 2009 (based on the Veteran's reported history of back pain for the past 4 years), this was 24 years after discharge. Further, arthritis was specifically not confirmed by X-ray until November 2011, nearly 26 years after discharge. As such, the medical evidence does not support service connection on a presumptive basis. Right Knee The Veteran claims that service connection is warranted for right knee disorder because it is related to his service-connected left knee disorder. Direct, secondary, and presumptive theories of entitlement have been claimed by the Veteran or raised by the record, so each will be analyzed in turn. Turning to the evidence, the first element of service connection of a current disorder is met, as the Veteran was diagnosed with mild degenerative changes of the right knee in a March 2006 X-ray, which was confirmed by the June 2013 VA examiner. As such, the first element for all theories of entitlements is met. Next, the second element of service connection on a direct basis of an in-service incurrence is not met as a review of the STRs fails to show any complaints of, treatment for, or a diagnosis of any right knee disorders. Additionally, the Veteran has not claimed that any event or injury was incurred in service. As such, the second element is not met, and the medical evidence does not support service connection on a direct basis. Turning to secondary service connection, the first element is met as the Veteran has been diagnosed with right knee arthritis. In addition, he has been service connected for a left knee disability since July 1994. As such, the first and second elements of secondary service connection are met. As to a medical nexus, at the June 2013 VA examination, the Veteran reported right knee pain for about 10 years, dating the onset to approximately 2003. He stated that the knee pain was chronic worse with prolonged walking, standing and climbing stairs. The examiner opined that it was less likely than not that any current right knee disorder was related to the service-connected left knee. He explained that it was more likely than not related to normal age progression, deconditioned state, and past physical occupation as a plumber for 34 years. Further, a review of his VA treatment records and all private medical records associated with the file fails to show that a nexus between the right knee disorder and the Veteran's service-connected left knee disability. As such, the third element of service connection is not met, and the medical evidence does not support service connection on a secondary basis. Next, as arthritis is chronic diseases, presumptive service connection under 38 C.F.R. § 3.303 and 3.309 will be considered. To that end, a review of the STRs fails to show a diagnosis of any chronic right knee injury or symptoms during service. Similarly, no evidence shows that a chronic disease developed to a compensable degree in the year following separation from service. Therefore, the medical evidence does not support presumptive service connection of a chronic in service, or compensable within one year of service basis. As to continuity of symptomatology, at the June 2013 VA examination, the Veteran reported right knee pain for about 10 years. Even considering symptoms as early as 2003, this was 18 years after discharge. Further, arthritis was specifically not confirmed by X-ray until March 2006, nearly 21 years after discharge. As such, the medical evidence does not support service connection on a presumptive basis. Left Ankle The Veteran claims that service connection is warranted for a left ankle disorder because it is related to his service-connected left knee disorder. A review of the record reflects that the Veteran has diagnosis of left ankle strain. As such, the first element of service connection has been met with respect to the claim. As to in-service incurrence, the STRs do not reflect complaints of or treatment for a left ankle injury during service. Therefore, the medical evidence does not support the in-service incurrence of a left ankle disorder. Turning to secondary service connection, the first element is met as the Veteran has been diagnosed with a left ankle disorder. In addition, he has been service connected for a left knee disability since July 1994. As such, the first and second elements of secondary service connection are met. Next, the medical evidence does not support a link between a left ankle disorder and a left knee disorder. In June 2013, a VA examiner opined that it was less likely than not that any current left ankle condition was related to the service-connected left knee. The examiner explained that it was more likely than not related to normal age progression, deconditioned state, and past physical occupation as a plumber for 34 years. Further, a review of the VA treatment record and all private medical records associated with the file fails to show that a nexus between the left ankle disorder and the Veteran's service-connected left knee disability. As such, the third element of service connection is not met, and the medical evidence does not support service connection on a secondary basis. With respect to all the claims for service connection, the Board has considered the Veteran's lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service connected for a left knee disability at 60 percent from May 15, 2016. He has also been granted a noncompensable rating for left knee surgical scars. Because he has a single disability that is ratable at 60 percent, he meets the requirements for a TDIU on a schedular rating under 38 C.F.R. § 4.16(a). The next inquiry is whether his service-connected left knee disability is severe enough to render him unable to secure or follow a substantially gainful occupation. Any nonservice-connected disabilities cannot be considered in this analysis. In May 2012, the Veteran indicated that he was unemployable due to his service-connected left knee disability. He reported a high school education, no additional education or training, and previous employment as a plumber until 2008. He further indicated that he went back to work after his total knee replacement but was unable to perform his duties due to severe pain and swelling on a daily basis. On a May 2016 VA examination, the examiner found that the Veteran's left knee disability impacted his ability to work. The examiner indicated that he was not able to work as a plumber since his left knee surgery because he could no longer kneel, crouch, or use ladders. However, the examiner did not find that he was unable to obtain or maintain substantially gainful employment. A decision of the Social Security Administration (SSA), dated in May 2012, shows that the SSA determined that the Veteran was disabled as of July 2009, with a primary diagnosis of other and unspecified arthropathies, and a secondary diagnosis of disorders of back (discogenic and degenerative). The Board notes that while findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or binding on VA. The SSA legal criteria for assessing disability differs in important respects from VA's own framework for determining entitlement to TDIU. SSA bases disability on a claimant's residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. Further, the SSA finding was based on a primary diagnosis of unspecified arthropathies and a back disorder (for which the Veteran is not service connected). The Board has considered lay statement submitted by the Veteran regarding his capacity to work. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's unemployability, has been provided by the medical personnel who have examined him and provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical experience to render medical opinions regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.