Citation Nr: 21068733 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-12 055A DATE: November 12, 2021 ORDER Entitlement to service connection for a bilateral ankle disability is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral ankle disability at any time during or approximate to the pendency of the claim. 2. The Veteran's bilateral knee disability did not manifest during active service, arthritis did not manifest within one year of discharge from active service, and there is no indication that his bilateral knee disability is otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from June 1987 to June 1988. He also had active service from January 1992 to January 1996 in the United States Marine Corps (USMC). This case initially came before the Board of Veterans' Appeals (Board) on appeal from September 2012 and November 2013 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2019 and January 2021, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board. Service Connection Ankles and Knees During the August 2018 Board hearing, the Veteran stated that his ankles and knees first started bothering him during active service and that he received treatment. He stated that he tried to take pressure off his feet as a result of bilateral pes planus and plantar fasciitis, which led to ankle pain. He reported that he had to do a lot of running during service in the USMC and that caused his knees to swell. He stated that he began seeking treatment at the VA in Gainesville and Lake City in 2005. Initially, the Board notes that the claims file only includes VA treatment records from Gainesville/Lake City dated from September 2012 to December 2019. In January 2021, the Board remanded the claims to attempt to obtain any records dated from 2005 to 2012; however, the Gainesville/Lake City VA Medical Center (VAMC) indicated that all the Veteran's records were in CAPRI, VA's computerized records interchange. His records were once again uploaded from CAPRI; however, there are no treatment records from Gainesville/Lake City dated prior to 2012. The available records indicate that the Veteran had a VA examination at the Gainesville VAMC in September 2012, and his first visit to the Lake City VAMC was in March 2013. In the August 2021 supplemental statement of the case (SSOC), the Veteran was notified that the evidence included VA treatment records from Gainesville/Lake City VAMCs dated beginning in September 2012, and that the registration information from those facilities showed a registration date of September 13, 2012. Given the foregoing, the Board finds that VA has satisfied its duty to assist the Veteran in obtaining any VA treatment records dated prior to 2012, that they do not exist, and that any further measures to obtain them would be fruitless. The Veteran's service treatment records indicated that on a March 1987 prescreening form prior to enlistment in the United States Air Force, he reported that he broke his right foot and was put in a cast at age 14, and that he has had no problems since then. His April 1987 enlistment examination report indicated that his lower extremities were normal. On the corresponding Report of Medical History, it was noted that he had fractured his right fibula and that it healed. The Veteran's April 1991 enlistment examination for the USMC indicated that his lower extremities were normal. On the corresponding Report of Medical History, he noted that he had broken his right ankle in the past. The examining physician noted that he had no residuals. In January 1992, it was noted that he had right knee pain and that he had been kicked below the knee and had effusion. The assessment was right tibial tendinosis. The report of his August 1995 discharge examination indicated that he had bilateral pes planus with excess pronation but that his lower extremities were otherwise normal. On his Report of Medical History, he denied having a history of trick or locked knee. He indicated that in the mornings both of his ankles were painful until they loosened up. It was also noted that he had a tibial fracture of the right leg when he was younger. He was referred for a podiatry consultation. It was noted that he had bilateral flat feet and occasional pain to the post tibial tendon, plantar fasciitis symptoms, and occasional lateral aspect pain of the bilateral feet. The Veteran noted that he had pain upon rising in the morning, which decreased during the course of the day. The assessment was gastrocnemius equinus, i.e., tightness of the calf muscle leading to limited ankle dorsiflexion, with secondary plantar fasciitis. Post service, a September 2012 VA knee examination report noted that the Veteran had bilateral knee strain. He reported that running during active duty resulted in his bilateral knee condition. The examiner opined that the Veteran's bilateral knee condition was less likely than not incurred in or caused by service, noting that there was only one complaint for right knee pain during service and no complaints of left knee pain. The examiner also noted that there was no continuity of symptomatology in close proximity to his release from active duty and that a possible intercurrent injury post service was unknown. A March 2013 VA treatment record noted that the Veteran reported experiencing chronic knee pain. In July 2013, it was noted that X-rays of the knees showed mild degenerative joint disease. During an October 2013 VA examination for the ankles, the Veteran reported that he started having bilateral ankle swelling and stiffness/pain worsening over the past five years. He denied any chronic bilateral ankle injury or treatment during service. The examiner noted a diagnosis of bilateral ankle strain during active duty as reported by the Veteran. The examiner opined that it was less likely as not that the Veteran's current bilateral condition was caused by or the result of active service. The examiner noted that there was no objective evidence of a chronic ongoing condition and no objective evidence of aggravation. In March 2019, the Board remanded the claims for additional VA examinations. The Board found that the September 2012 and October 2013 VA examinations were inadequate because the examiners failed to adequately address the Veteran's lay statements and contentions regarding the onset and continuity of his symptoms. Additional VA examinations were conducted in January 2020. The report of the knee examination indicated that the Veteran stated that he experienced constant knee pain, which he treated with over-the-counter ibuprofen and knee sleeves. The examiner noted that the Veteran had a diagnosis of right knee tendonitis/tendinosis during service in 1992; bilateral shin splints in 1992; and a diagnosis of bilateral knee degenerative arthritis in 2013. The examiner reviewed the claims file and opined that the Veteran's bilateral knee disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran was treated for acute right knee tendonitis and shin splints during service, but that those conditions resolved without residuals by the time of his separation in 1995. The examiner noted that the Veteran currently suffered from age-related degenerative joint disease/osteoarthritis and that the acute tendonitis and shin splints did not cause or result in osteoarthritis or degenerative changes. The examiner noted that the first evidence of degenerative changes was from imaging in 2013. The report of the January 2020 VA ankle examination indicated that the Veteran had a diagnosis of bilateral tendonitis in 1995. The examiner noted that the 1995 podiatry consultation indicated that the Veteran had occasional posterior tibial tendon pain due to pes planus. The examiner also noted that the Veteran continued to experience chronic foot pain, which he attributed to plantar fasciitis. On examination of the ankles, there was no pain on palpation of the tibial tendon or on manipulation of the ankle. Range of motion of the ankles was normal. X-rays of the ankles showed no fracture or dislocation of the distal tibia or fibula; no lucent or sclerotic abnormality of the right or left tibial plateau; no plantar or posterior spurring of either calcaneus; and no soft tissue abnormality. The examiner opined that the Veteran's claimed bilateral ankle disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran suffered from posterior tibialis tendonitis while on active duty; however, he currently did not report pain on the inside of the foot and ankle, which was the course of the tendon. The examiner also noted that there was no warmth, swelling, or tenderness of those tendons on physical examination. Furthermore, the examiner noted that there was no medical record of on-going care of such condition and that the ankle tendonitis during service was self-limited and resolved with no residuals or chronic functional limitation. In July 2020, the AOJ requested an addendum opinion, which specifically addressed the Veteran's lay statements and continuity of symptoms and secondary service connection. The January 2020 VA examiner reiterated his opinion and rationale regarding direct service connection. Regarding secondary service connection, the examiner opined that it was less likely than not that the Veteran's service-connected flat feet caused or chronically worsened his bilateral knee degenerative joint disease by some alteration in his body mechanics or gait. The examiner opined that it was more likely that the disability was due to genetic predisposition conditioned by aging and obesity, given that the Veteran's pes planus was mild and had not caused significant alterations in his gait based on examination and a review of imaging studies. Furthermore, the examiner opined that he could not correlate service-connected pes planus with any ankle disability because the examiner did not diagnose the Veteran as suffering from a chronic ankle condition. In June 2021, the AOJ requested clarification from the VA examiner because his nexus opinions were partly based on the lack of complaints or treatment for the claimed disabilities for many years. The examiner noted that the Veteran's claims file was thoroughly reviewed. He noted that although the Veteran had right knee pain during service in 1992, which was diagnosed as right iliotibial band tendonitis, patellar tendinitis, and bilateral shin splints; at his 1995 separation examination, the Veteran denied trick or locked knee. The examiner also noted that the Veteran's service treatment records were negative for treatment of an acute ankle injury; however, in 1995, he was assessed as having posterior tibial tendon pain due to pes planus. Currently, the examiner noted that imaging of the ankles was negative and that the pain reported during examination was consistent with plantar fasciitis. Ultimately, the examiner concluded that it appeared from the treatment records that the Veteran's in-service tendonitis of the knees and ankles resolved without residual sequelae and that his current complaints and diagnoses represented different pathologic entities. The examiner indicated that the lack of a nexus was not due to the lack of complaints or treatment for many years after service, but the completely different diagnoses noted during service and those now manifest and the lack of any pathophysiologic connection. In this case, the Board finds the most probative evidence weighs against the claims. Although the Veteran was treated for right knee tendonitis during active service in 1992, the evidence does not indicate that that condition was chronic. There was no follow-up treatment pertaining to the knees and at his August 1995 separation examination, his lower extremities were normal, and he denied having trick or locked knee. After service, the first documentation of a knee disability occurred in 2013. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, although the Veteran was noted to have ankle posterior tibial tendonitis and gastrocnemius equinus in connection with his August 1995 discharge examination, the preponderance of the evidence does not indicate that he has a current right or left ankle disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and the active military service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no competent evidence of a current ankle disability, to include any resulting chronic functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Furthermore, the January 2020 VA examiner opined that the Veteran's bilateral knee disability was less likely than not incurred in or caused by active service and was not caused or aggravated by his service-connected pes planus. The examiner also opined that the Veteran did not have a current right or left ankle disability or any chronic functional impairment. The examiner considered and addressed the relevant evidence of record, the Veteran's contentions, and provided rationale for his opinion. For this reason, the Board finds the VA examiner's opinions significantly probative. Furthermore, there are no medical opinions to the contrary. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his statements conflict with the contemporaneous medical evidence, the Board does not find them credible. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for bilateral knee and ankle disabilities is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.