Citation Nr: 21067256 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-01 656 DATE: November 3, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for residuals of a left heel disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence demonstrates that the Veteran's left ankle disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran has had residuals of a left heel disability or any related disability at any time during or approximate to the pendency of his claim for service connection. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 3. The criteria for entitlement to service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision. In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran's claims for service connection were remanded by the Board in April 2018, September 2020, and March 2021. Service Connection Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for most chronic diseases, including arthritis, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left knee disability is denied. The Veteran maintains that his current left knee disability is related to his active service. In particular, the Veteran provides that he fell from a truck and landed on his left leg and rolled during his active service. After he fell, he experienced left knee swelling and he sought treatment. He returned to duty after being treated while in service, but he limped and experienced left knee swelling until the end of his active service. After his active service ended, he had chronic left knee pain and swelling over the years, but he treated himself with ice as needed and/or relied on Chinese medicine. For the reasons discussed below, the Board finds that service connection is not warranted. Regarding a current disability, the Board notes that the November 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire indicates that the Veteran has diagnoses of left knee strain and left knee degenerative arthritis. A November 2019 Magnetic Resonance Imaging (MRI) demonstrates that the Veteran has mild degenerative narrowing of the medial knee joint space with small marginal osteophytes, chronic changes to the fibular head are possibly due to an old injury, patellofemoral is narrowed with small marginal osteophytes and chondrocalcinosis at the articular margins, degenerative changes, and non-specific chondrocalcinosis. As such, the Board finds that the Veteran meets the requirement of a current disability. The medical history section of the November 2019 VA examination report provides that the Veteran worked at the United States Postal Service for 28 years as a tow motor driver/power equipment driver. His employment responsibilities including loading trailers and transporting the trailers to mail trucks. He reported lifting, bending, and carrying objects greater than 70 pounds for many years. The November 2019 VA examination report indicates that the Veteran reported chronic left knee pain over the years that he treated with ice as needed. He also advised that he has not been followed by orthopedic specialist for his left knee, obtained recent imaging, has not participated in physical therapy, and has not needed a cortisone injection to his left knee. He reported stretching, icing, using heat, and taking Ibuprofen and Tylenol for pain. He tries to stay active and attends the gymnasium three to four times per week to help with his pain. He indicated that stretching is helpful and staying active on the treadmill reduces his pain. Concerning an in-service incurrence, an August 1972 service treatment record demonstrates that the Veteran injured knee while offloading an aircraft and he complained of weakness and pain in his left knee. He was noted to have a mild left knee effusion and was directed to rest and apply ice to his knee. X-rays were negative and he was not given a profile. As such, the Board finds that the Veteran meets the criteria for an in-service injury. Thus, the issue before the Board is whether the Veteran's current left knee disability is related to his active service. The Veteran's claims folder contains an April 2021 VA medical opinion regarding the etiology of his current left knee disability. The medical opinion concludes that the Veteran's left knee disability less likely than not was incurred in or caused by his active service. In support, the medical opinion provides that the Veteran's complaint of knee strain that occurred in 1972 after offloading an aircraft was documented without trauma as he had a mild knee effusion with a concern for a pulled hamstring. The Veteran was not placed on a profile, which implies the injury was minor. His separation examination was silent for lower extremity knee complaint and he continued in active duty until separation without further treatment or complaint of knee injury. The injury to the Veteran's left knee in 1972 is considered an isolated acute incident without residual effects. The April 2021 VA medical opinion continues that the Veteran had a career with United States Postal Service for 28 years, where he worked as a tow motor driver/power equipment driver. His employment responsibilities included loading trailers and transporting the trailers to mail trucks. He reported lifting, bending, and carrying objects greater than 70 pounds for many years. If the knee disability that the Veteran sustained in 1972 had residual issues, it would have been difficult for him to work as a postal worker for 28 years bending, lifting, and carrying objects that weigh greater than 70 pounds. The April 2021 VA medical opinion states that it would also be expected that if the Veteran had residual effects from a left knee injury in 1972, he would have sought some type of medical attention. However, the Veteran's claims folder does not contain record of complaints of a left knee disability. Related, the mild arthritis found in the Veteran's left knee on imaging in 2019 is consistent with degenerative aging and aligns with the very active physical career that the Veteran had in the United States Postal Service for 28 years. There are no medical records to support chronicity of the condition from 1972 to present and his employment at the United States Postal Service required prolonged standing and bending of the knee and repetitive kneeling. There is a significant gap of over 30 years between the Veteran's in-service left knee injury and his complaints for service connection per the April 2021 VA medical opinion. It is difficult to associate a minor injury to the left knee to the Veteran's current complaints of a left knee disability with arthritis. While the Veteran states he utilized Chinese medicine for treatment of his left knee disability throughout the years, there is no complaint of any joint pain with his providers or mention that he is treated with Chinese medicine. The April 2021 VA medical opinion concludes that the Veteran had a mild injury to his left knee during his active service. His separation examination is silent for a left knee disability. His claims folder contains radiologist evidence of mild degeneration of the left knee, which would develop with age and a very active physical weight-bearing career that the Veteran had with the United States Postal Service. Further, there is no chronicity of record of the Veteran's left knee disability. Lastly, his ability to work in a very physical career for 28 years is evidence that it is unlikely that even if his left knee disability was treated with Chinese medicine that it is related to an in-service injury. The Board finds that the April 2021 VA medical opinion carries significant probative weight, as it is supported by a detailed rationale based upon a review of the Veteran's medical history, his statements, and relevant diagnostic testing. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). Moreover, there is no medical opinion evidence to the contrary. The Board finds the Veteran's statements that he had continuing, chronic left knee pain and swelling over the years after service to lack credibility, based upon the VA examiner's opinion that if the knee disability that the Veteran sustained in 1972 had residual issues, it would have been difficult for him to work as a postal worker for 28 years bending, lifting, and carrying objects that weigh greater than 70 pounds. The Board notes that the Veteran believes his current left knee disability is related to his in-service injury. Because the Veteran is not shown to have a medical background or expertise, he is considered a layperson in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board must determine on a case-by-case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316 (holding that it was error to reject categorically lay statements on the issue of medical nexus, or to make a categorical finding that a medical opinion was required); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). Here, whether the Veteran's current left knee disability is related to his in-service injury is a medical or scientific determination that is too complex to be made based on lay observation alone, since such a determination cannot be perceived through the senses. Therefore, the Board finds that his statements are not competent evidence and thus lack probative value. Further, because the Veteran's left knee arthritis was not noted in service or within a year of service separation, and as arthritis of the left knee is not shown to have manifested to a compensable degree within a year of service separation, service connection for left knee arthritis as a chronic disease is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis under § 3.307. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Accordingly, the Veteran's claims folder does not contain competent medical evidence linking his left knee disability to his active service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for a left ankle disability is denied. The Veteran maintains that his current left ankle disability is related to his active service. In particular, the Veteran provides that he fell from a truck and landed on his left leg and rolled during his active service. After he fell, he experienced left ankle swelling and he sought treatment. He returned to duty after being treated while in service, but he limped and experienced left ankle swelling until the end of his active service. After his active service ended, he had chronic left ankle pain and swelling over the years, but he treated himself with ice as needed and/or relied on Chinese medicine. For the reasons discussed below, the Board finds that service connection is not warranted. Regarding a current disability, the Veteran's November 2019 VA Ankle Conditions Disability Benefits Questionnaire states that he has diagnoses of left ankle degenerative arthritis and left ankle strain. A November 2019 MRI demonstrates that the Veteran has no acute fracture, dislocation, or destructive bone changes, his ankle mortise is congruent, he has mild degenerative changes at the tibiotalar joint anteriorly and in the midfoot, questionable Achilles insertional and calcaneal tuberosity enthesophytes, and Arterial vascular calcifications were seen in the soft tissues. As such, the Board finds that the Veteran meets the requirement of a current disability. Concerning an in-service incurrence, an August 1972 service treatment record demonstrates that the Veteran injured knee while offloading an aircraft and he complained of weakness and pain in his left knee. The November 2019 VA examination report indicates that the Veteran reported rolling his left ankle during the above injury, that he was seen at a hospital in Spain several times during his active service, and his left ankle was treated with an Ace bandage. During the November 2017 hearing, the Veteran stated that he had left ankle swelling immediately following the injury. The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Thus, the Board finds that the Veteran meets the criteria for an in-service incurrence. Therefore, the issue before the Board is whether the Veteran's current left ankle disability is related to his active service. The Veteran's claims folder contains an April 2021 VA medical opinion regarding the etiology of his current left ankle disability. The medical opinion concludes that the Veteran's left ankle disability less likely than not was incurred in or caused by his active service. There is no evidence of record in the Veteran's service treatment records of left ankle issues. The Veteran's separation examination was silent for an ankle disability. Further, his private treatment records are silent for an ankle disability. The April 2021 VA medical opinion provides that Veteran's statement regarding his in-service left ankle injury that occurred at the same time he injured his left knee while offloading an aircraft is noted. However, the Veteran's service treatment records do not show that he sustained a left ankle injury at the time he was evaluated for his left knee disability. In sum, there are no medical records showing complaint, injury, treatment, or imaging of the Veteran's left ankle contained in his service treatment records or private treatment records to validate chronicity. The April 2021 VA medical opinion advises that the Veteran had a career with United States Postal Service for 28 years, where he worked as a tow motor driver/power equipment driver. His employment responsibilities required lifting, bending, and carrying objects greater than 70 pounds for many years. The Veteran's mild degenerative changes in the ankle joint is attributed to age related degeneration and the very physical active career of prolonged weight-bearing and lifting objects greater than 70 pounds throughout his 28-year career in at the United States Postal Service according to the April 2021 VA medical opinion. The Veteran states he utilized Chinese medicine for treatment of his left ankle disability throughout the years. However, despite this statement, there is no complaint of any joint pain with his providers or mention that he is treated with Chinese medicine. To summarize, the April 2021 VA medical opinion provides that the Veteran's separation examination is silent for a left ankle disability. His claims folder does not contain evidence of a left ankle disability in conjunction with his left knee disability. There is radiologic evidence of mild degeneration of the Veteran's left knee, which would develop at his age and after a very active, physical weight-bearing career. There is no chronicity of record of the Veteran's left ankle disability. Lastly, his ability to work in a very physical career for 28 years is evidence that it is unlikely that even if his left ankle disability was treated with Chinese medicine that it is related to an in-service injury. The Board finds that the April 2021 VA medical opinion carries significant probative weight, as it is supported by a detailed rationale based upon a review of the Veteran's medical history, his statements, and relevant diagnostic testing. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, there is no medical opinion evidence to the contrary. The Board finds the Veteran's statements that he had continuing left ankle symptoms after service to lack credibility, based upon the VA examiner's opinion that his ability to work in a very physical career for 28 years is evidence that it is unlikely that, even if his left ankle disability was treated with Chinese medicine, that it is related to an in-service injury. The Board notes that the Veteran believes his current left ankle disability is related to his in-service injury. Because the Veteran is not shown to have a medical background or expertise, he is considered a layperson in the field of medicine. Here, whether the Veteran's current left ankle disability is related to his in-service injury is a medical or scientific determination that is too complex to be made based on lay observation alone, since such a determination cannot be perceived through the senses. Therefore, the Board finds that his statements are not competent evidence and thus lack probative value. Further, because the Veteran's left ankle arthritis were not noted in service or within a year of service separation, and as arthritis of the left ankle is not shown to have manifested to a compensable degree within a year of service separation, service connection for left ankle arthritis as a chronic disease is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis under §3.307. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Accordingly, the Veteran's claims folder does not contain competent medical evidence linking his left ankle disability to his active service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 3. Entitlement to service connection for residuals of a left heel disability is denied. The Veteran maintains that he has residuals of a left heel disability that is related to his active service. For the following reasons, the Board finds that service connection is not warranted. After a review of the evidence of record, the Board concludes that the Veteran does not have a current diagnosis relating to residuals of a left heel disability or a heel disability and has not had a disabling heel disability at any time during the pendency of his claim for service connection or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran advised that he experiences left heel pain in his May 2017 VA Form 9, Appeal to the Board of Veterans' Appeals. However, the Veteran's post-service treatment records do not contain evidence of a left heel disability. In particular, the Veteran's private treatment records do not show that he has had treatment relating to his left heel or any related diagnosis. Further, the Veteran's VA treatment records show that the Veteran had range of motion without pain at the ankle. VA treatment records do not contain evidence of subjective symptoms reported by the Veteran relating to his heel. Lastly, the Veteran's VA treatment records demonstrate that he engages in physical activity as he engages in swimming, walking, biking, and weightlifting. Therefore, the competent evidence of record does not reflect the presence of functional disabilities related to any complaint of left heel pain. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability if it "reaches the level of a functional impairment of earning capacity.") Again, because the Veteran is not shown to have a medical background or expertise, he is considered a layperson in the field of medicine. Therefore, the Veteran's statement concerning his left heel pain is competent and probative regarding the current subjective symptoms of his left heel. Davidson, 581 F.3d at 1316; Jandreau, 492 F. 3d at 1376-77. (Continued on the next page) To the extent that the Veteran contends that his manifestations of left heel pain are produced by residuals of left heel disability or a left heel disability, the Veteran, as a lay person, is not competent in attributing his symptoms to residuals of left heel disability or a left heel disability. Accordingly, the above-cited unsupported lay statement is not competent evidence in the area of the etiology of his left heel pain, and therefore is not competent or probative. See Layno, 6 Vet. App. at 470-71 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In sum, the Veteran's claims folder does not contain evidence that the Veteran has current residuals of left heel disability or a left heel disability. Therefore, the preponderance of the evidence is against the claim for service connection. The benefit of the doubt doctrine is not for application, and entitlement to service connection for residuals of a left heel disability is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.