Citation Nr: 21068437 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-10 081 DATE: November 10, 2021 ORDER Service connection for tinnitus is denied. Service connection for plantar fasciitis, left foot is denied. Service connection for plantar fasciitis, right foot is denied. Service connection for a lumbar spine disability is denied. Service connection for degenerative arthritis, left knee, is denied. Service connection for degenerative arthritis, right knee. is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of tinnitus. 2. The Veteran does not have a current diagnosis of plantar fasciitis, left foot. 3. The Veteran does not have a current diagnosis of plantar fasciitis, right foot. 4. The Veteran's lumbar spine 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. 5. The Veteran's degenerative arthritis, left knee, 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. 6. The Veteran's degenerative arthritis, right knee, 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. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for plantar fasciitis, left foot, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for plantar fasciitis, right foot, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for degenerative arthritis, left knee, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for degenerative arthritis, right knee, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1954 to January 1957. On appeal is a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for, as relevant here: (1) tinnitus; (2) plantar fasciitis, left foot; (3) plantar fasciitis, right foot; (4) a low back condition; (5) degenerative arthritis, left knee; and (6) degenerative arthritis, right knee. In his substantive appeal, the Veteran requested a Hearing before the Board of Veterans' Appeals (Board) and a hearing was initially scheduled for May 12, 2020. That hearing was postponed and rescheduled on multiple occasions. In July 2021, the Veteran indicated he did not want to go through with the hearing and cancelled the hearing. The Board will now proceed with adjudication of the Veteran's claim. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record is a VA examination for tinnitus that was conducted in November 2015. The Board acknowledges that no examination has been provided for the Veteran's claimed foot, lower back, and knee disabilities. In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As is discussed in greater detail below, however, there is no indication of plantar fasciitis, a lower back condition, or a knee condition in service or that any such disability is related to the Veteran's time on active duty. Therefore, the Board finds that a VA examination as to those claimed disabilities is not warranted. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain chronic diseases identified as such in 38 C.F.R. § 3.309(a), such as arthritis and tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a one-year presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As there is no competent evidence of a current diagnosis of tinnitus, the Board concludes that the preponderance of the evidence is against granting service connection. In November 2015, the Veteran underwent a VA examination. The examiner conducted an in-person examination and reviewed the Veteran's case file. As part of the examination, the examiner noted the Veteran did not report a medical history of tinnitus, and that he specifically denied having tinnitus. As such, the examiner stated there was no diagnosis of tinnitus. Post service VA medical records from the South Texas Veterans Health Care System are associated with the Veteran's case file. None of these records reflect a diagnosis of tinnitus. The Board acknowledges the Veteran's report of tinnitus in his claim. However, in order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a Veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, in light of the findings of the November 2015 VA examiner, which shows the Veteran does not have a current diagnosis of tinnitus, the Board concludes that the competent evidence of record does not establish that the Veteran has a current diagnosis of tinnitus. As such, the claim must be denied. 2. Entitlement to service connection for plantar fasciitis, left foot. 3. Entitlement to service connection for plantar fasciitis, right foot. The Veteran seeks service connection for plantar fasciitis of his left foot and his right foot. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As there is no competent evidence of a current diagnosis of plantar fasciitis of either the left foot, or the right foot, the Board concludes that the preponderance of the evidence is against granting service connection. Post service VA medical records from the South Texas Veterans Health Care System are associated with the Veteran's case file. None of these records reflect a diagnosis of plantar fasciitis of the left foot or the right foot. For example, a June 2004 record reflects the Veteran's right and left foot were examined. As to the left foot, the examiner noted visual inspection of the left foot is normal with no skin breaks, deformity, evidence of trauma, erythema, dependent rubor, edema, corns, excessive callus or nail abnormality. Sensory examination of the foot indicated the foot was normal. Palpation of pedal pulses of the left foot was normal. The right foot was also examined. The examiner noted visual inspection of the right foot was normal with no skin breaks, deformity, evidence of trauma, erythema, dependent rubor, edema, corns, excessive callus or nail abnormality. Sensory examination of the right foot was normal. Palpation of pedal pulses of the right foot was normal. The Board acknowledges the Veteran's report of plantar fasciitis of his left foot and his right foot in his claim. However, in order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a Veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, while the Veteran is competent as a layperson to testify to symptoms he experiences, such as pain, he has not demonstrated that he has the necessary skills, experience, or medical knowledge to diagnose the etiology of any claimed foot injury; this is a complex medical question. Consequently, the Board concludes that the Veteran's statements and opinions as to diagnosis and etiology are of little probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board also notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a disability under 38 U.S.C. § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, even in light of Saunders, the Board finds that the Veteran does not have a current diagnosis of plantar fasciitis of the left or right foot, as the evidence does not indicate the Veteran's claimed foot conditions have caused functional impairment of earning capacity. Because the competent evidence of record does not establish that the Veteran has a current diagnosis of plantar fasciitis of either the left foot or the right foot, the claim must be denied. 4. Entitlement to service connection for a lumbar spine disability. The Veteran claims he has a low back condition as a result of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his lumbar spine disability. The Veteran's service treatment records are associated with his claims file. These records are silent for any complaint, diagnosis or treatment of a lumbar spine or back disorder. The January 1954 entrance Report of Medical Examination reflects the Veteran had a normal spine examination with no defects or diagnoses noted regarding his spine. The January 1957 exit Report of Medical Examination reflects the Veteran had a normal spine examination with no defects or diagnoses noted regarding his spine. The Veteran's post service VA treatment records from the South Texas Veterans Health Care System are associated with his claims file. These records show the Veteran has been diagnosed with lumbar spine degenerative disc disease and received treatment over the years. For example, a November 2010 record noted a complaint of chronic back pain. A March 2011 record reflects the Veteran had chronic lumbar degenerative disc disease and that he complained his back was hurting worse over the past month, with numbness of the upper legs that resolves when he flexes at the hips and sits down. The examiner indicated he suspected lumbar stenosis and recommended an MRI. A September 2012 record reflects the Veteran had chronic lower back pain but declined further intervention at that time. His September 2012 active problem list includes degeneration of lumbar spine. None of these records provide a nexus or link of the Veteran's lumbar spine degenerative disc disease and his service. Presumptive Service Connection The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board finds, however, that the Veteran's lumbar spine disorder was not shown as chronic since service and did not manifest to a compensable degree within the presumptive period of one year. VA treatment records show the Veteran was not diagnosed with degenerative arthritis of the lumbar spine until 2011, over 50 years after his separation from service and decades outside of the applicable presumptive period. Thus, entitlement to service connection for a lumbar spine disability on a presumptive basis, or on the basis of continuity of symptomatology since service that is attributable to a chronic disease, is denied. Direct Service Connection In light of the above, the Board also concludes that service connection is not warranted for a lumbar spine disability on a direct basis. There is simply no competent evidence of record to suggest that the Veteran has a lumbar spine disability that is in any way related to his time on active duty. None of the Veteran's treatment providers have opined that his lumbar spine disability is related to his active service. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran's claimed lumbar spine disability to his military service. The Veteran's service treatment records make clear that he did not have a complaint, diagnosis or treatment of a lumbar spine disability during any of his active duty service. Moreover, because the Veteran's post-service VA treatment records from the South Texas Veterans Health Care System are associated with his claims file, the Board finds it significant that the Veteran's first diagnosis of lumbar spine arthritis was not documented until 2011, over 50 years after his separation from active service in January 1957. In this case, the only evidence in favor of the Veteran's claim is his own statements concerning his belief that his claimed lumbar spine disability is due to service. With regard to the Veteran's contentions, 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 in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of a lumbar spine disability such as lower back pain, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that other than the Veteran's unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran's claimed lumbar spine disability and his time in active duty service. Thus, the criteria for service connection for a lumbar spine disability have not been met. The evidence weighs against the Veteran's claim. Service connection for a lumbar spine disability must be denied. 5. Entitlement to service connection for degenerative arthritis, left knee. 6. Entitlement to service connection for degenerative arthritis, right knee. The Veteran claims he has degenerative arthritis of his left and right knee as a result of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his degenerative arthritis of the left knee and right knee. The Veteran's service treatment records are associated with his claims file. These records are silent for any complaint, diagnosis or treatment of any knee disorder. The January 1954 entrance Report of Medical Examination reflects the Veteran had a normal lower extremities examination with no defects or diagnoses noted regarding his knees. The January 1957 exit Report of Medical Examination reflects the Veteran had a normal lower extremity examination with no defects or diagnoses noted regarding his knees. The Veteran's post service VA treatment records from the South Texas Veterans Health Care System are associated with his claims file. These records show the Veteran had been diagnosed with degenerative arthritis of his left knee, as well as his right knee, and that he subsequently had bilateral knee replacements. For example, a November 2010 record noted a complaint of knee pains and a past surgical history that included right knee replacement. A December 2014 record reflects the Veteran had his left knee replaced in May 2014, and that he feels much better. A January 2017 active problem list reflects the Veteran had bilateral knee replacements. None of these records provide a nexus or link of the Veteran's degenerative arthritis of his left or right knee and his service. Presumptive Service Connection The Veteran has a current diagnosis of degenerative arthritis of his left knee and his right knee. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board finds, however, that the Veteran's bilateral knee disorder was not shown as chronic since service and did not manifest to a compensable degree within the presumptive period of one year. The earliest VA treatment of record for degenerative arthritis of the left and right knee is November 2010, over 50 years after his separation from service and outside of the applicable presumptive period. Thus, entitlement to service connection for degenerative arthritis of the left and right knee, on a presumptive basis, or on the basis of continuity of symptomatology since service that is attributable to a chronic disease, is denied. Direct Service Connection In light of the above, the Board also concludes that service connection is not warranted for degenerative arthritis of the left knee or right knee on a direct basis. There is simply no competent evidence of record to suggest that the Veteran has a knee disability that is in any way related to his time on active duty. None of the Veteran's treatment providers have opined that his knee disability is related to his active service. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran's claimed degenerative arthritis of his left knee and his right knee to his military service. The Veteran's service treatment records make clear that he did not have a complaint, diagnosis or treatment of a knee disability during any of his active duty service. Moreover, because the Veteran's post-service VA treatment records from the South Texas Veterans Health Care System are associated with his claims file, the Board finds it significant that the Veteran's first diagnosis of degenerative arthritis of the knee was not documented until 2010, over 50 years after his separation from active service in January 1957. In this case, the only evidence in favor of the Veteran's claim is his own statements concerning his belief that his degenerative arthritis of his and right knee is due to service. With regard to the Veteran's contentions, 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 in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of a knee disability such as pain, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that other than the Veteran's unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran's claimed degenerative arthritis of his left and right knee, and his time in active duty service. Thus, the criteria for service connection for degenerative arthritis of the left knee and the right knee have not been met. The evidence weighs against the Veteran's claim. Service connection for degenerative arthritis of the left knee and the right knee must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.