Citation Nr: 21071185 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-28 706 DATE: November 30, 2021 ORDER Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. Service connection for residuals of a groin injury is denied. REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a gastrointestinal disorder to include gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current left knee degenerative arthritis did not have its onset in service and are not otherwise caused by or related to active military service, nor may the left knee disorder be presumed to have been incurred therein. 2. The preponderance of the evidence shows that the Veteran's current right knee degenerative arthritis did not have its onset in service and are not otherwise caused by or related to active military service, nor may the right knee disorder be presumed to have been incurred therein. 3. The preponderance of the evidence shows that the Veteran does not have a diagnosis of residuals of groin injury that is caused by or related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of a groin injury are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to December 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a bilateral knee condition, right ankle condition, GERD, and epididymitis (claimed as groin injury). The Veteran's notice of disagreement (NOD) was received in September 2013. The RO issued a statement of the case (SOC) in April 2016. The Veteran's VA Form 9, substantive appeal to the Board, was received in May 2016. In May 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In October 2019, the Board remanded the case to the RO for further development and adjudicative action. SERVICE CONNECTION Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303. Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. The Veteran contends that he has a bilateral knee disorder that is related to parachuting during service. He testified at the May 2019 Board hearing that he experienced bilateral knee pain during service after parachuting and he continued to experience bilateral knee problems since 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 concludes that, while the Veteran has current diagnoses of chondromalacia and degenerative arthritis of the bilateral knees, the preponderance of the evidence weighs against finding that the Veteran's diagnoses of chondromalacia and arthritis of the bilateral knee began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Turning to the evidence of record, a February 2016 VA treatment records shows that the Veteran was diagnosed with bilateral knee osteoarthritis and chondromalacia. A September 2019 VA examination reveals that the Veteran was diagnosed with degenerative arthritis and chondromalacia of the bilateral knees. Thus, the medical evidence reflects a current diagnosis of the claimed disability. The Veteran's DD 214 shows that the Veteran is in receipt of the parachute badge. Nonetheless, the Veteran's service treatment records reveal that the Veteran did not complain of, or receive treatment for, a bilateral knee disorder during active military service. In addition, the Veteran's October 1971 separation examination reveals that his lower extremity was evaluated as clinically normal. The first medical evidence of complaints of left knee pain was in August 1999. An August 1999 private treatment record shows that the Veteran reported pain in both knees. He denied injury to the knees. Physical evaluation was positive for effusion and crepitus. Ligaments were intact. He was diagnosed with osteoarthritis of the bilateral knee. The medical evidence shows that the Veteran was first diagnosed with osteoarthritis of the bilateral knees in August 1999, approximately 28 years after discharge from active duty service. The Veteran testified at the May 2019 Board hearing that he experienced bilateral knee pain during service after parachuting and he continued to experience bilateral knee problems since service. While the Veteran is competent to report having experienced symptoms of joint pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of chondromalacia or degenerative arthritis of the bilateral knee. The issue is medically complex, as it requires the ability to interpret diagnostic medical testing to include x-rays. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Regarding the issue of whether service connection is warranted on the basis of the presumption of service connection for chronic diseases, the weight of the above evidence is against manifestation of arthritis of the bilateral knee in service or within the one-year presumptive period. See 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Further, the claims file contains a negative medical opinion with respect to the issue of whether the Veteran's current diagnoses of chondromalacia and degenerative arthritis of the bilateral knee had its onset in or is caused by or related to active military service. Specifically, after reviewing the claims file, a December 2019 VA physician provided the opinion that the Veteran's claimed condition was less likely than not incurred in or cause by the claimed in-service injury, event, or illness. The examiner asserted that the Veteran's right knee osteoarthritis/ chondromalacia is less likely as not caused by or a result of the Veteran's service in the military. The examiner explained the Veteran's service treatment records do not show an event, disease, or injury in service. The Veteran's enlistment and exit examination is silent for knee conditions. The first treatment for knee pain occurred in August of 1999 and at that time the Veteran was diagnosed with osteoarthritis of the knee. Additionally, the Veteran reported during a February 2016 VAMC visit that the knee pain began 20 years prior and was without trauma. The examiner noted that osteoarthritis is the leading cause of arthritis among older people and knees are the most commonly affected joints associated with osteoarthritis. Osteoarthritis is a degenerative condition that occurs over an extended period of time and often can progressively worsen from being overweight. The Veteran has documented history of being overweight and a past medical history of obesity. The Veteran's DD214 references parachute badge and a service of one year and eight months without foreign service deployment. Although the Veteran claims physical trauma associated with hard landings during multiple parachute jumps, the examiner was unable to substantiate this claim in the service treatment record. Additionally, his diagnosis of knee osteoarthritis is first reported in 1999, a full 29 years after discharge. The examiner's medical opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his degenerative arthritis of the bilateral knee is related to his active military service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of degenerative arthritis cannot be competently addressed by the Veteran as a lay person based on personal observation, such as, visual observation or by any other senses. The current diagnoses of degenerative arthritis were based on interpretation of symptoms, and clinical and diagnostic tests, in this case, x-rays, which requires medical knowledge. Further, the Board is mindful that the claim may not be denied solely on the basis of a lack of treatment for many years following service discharge. In this case, the Board has considered the Veteran's contentions that he has had bilateral knee pain since service; however, the lack of treatment following service, when considered along with the physician's opinion which also relies on the objective findings as to the current severity of symptoms and pathophysiology of degenerative joint disease in relation to the years since service, outweighs the Veteran's lay statements. The only competent evidence regarding a whether any nexus exists between the Veteran's current degenerative arthritis of the bilateral knee and his active duty service is the opinion of the December 2019 VA physician, which definitively concluded that the Veteran's current degenerative arthritis of the bilateral knee is less likely than not related to the Veteran's military service. The December 2020 medical opinion is considered probative, based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. The Veteran has not provided any competent medical or lay evidence to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Consequently, more probative weight is given to December 2019 VA medical opinion than the Veteran's lay statements. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's current bilateral knee disorder did not have its onset in service and is not otherwise related to active military service. Accordingly, entitlement to service connection for a bilateral knee disorder is not warranted. 3. Entitlement to service connection for residuals of a groin injury. The Veteran contends that he experienced groin pain during active military service that has continued to the present. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 concludes that the Veteran does not have a current diagnosis of disability manifested by groin pain and has not had one at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, an April 2013 VA examiner found no abnormal findings on physical examination. The examiner noted that the Veteran's groin pain me be referred pain dur to his chronic back pain. A December 2019 VA muscle examination shows that no diagnosis of muscle disability or injury was warranted. "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." Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). However, the medical and lay evidence of record does not reflect that the Veteran's groin pain results in any functional impairment of earning capacity. The Veteran's service treatment records document that the Veteran sought treatment for swelling and tenderness of the left testicle. Specifically, an April 1970 service treatment record shows that the Veteran reported his left testicle became swollen on Monday and it was still swollen. Physical examination revealed no hernia was present. He was diagnosed with epididymitis. He was given a prescription for ampicillin. A May 1970 service treatment record documents that epididymitis remained. The Veteran had swelling and tenderness of the left testicle. A June 1970 service treatment record noted epididymitis. A March 1971 service treatment record reveals that the Veteran reported pain in his groin. An ultrasonogram and physical examination was within normal limits. The Veteran's separation examination in October 1971 reveals that physical examination was normal. Nonetheless, the claims file contains two negative medical opinions with respect to whether the Veteran's chronic groin pain is related to active service. In this regard, an April 2013 VA examiner provided the opinion that the Veteran's chronic groin pain is less likely has not caused by his epididymitis while in service. The April 2013 VA examiner explained that he found no abnormal findings on physical examination. He indicated that the pain may be referred pain due to his chronic back pain. A December 2019 VA examiner determined that the Veteran's groin pain is less likely than not proximately due to or the result of a hip disability. The examiner explained that the Veteran did not have documented left hip disability. He reported right hip pain in his service treatment records. The groin pain resolved in 1970 and was on the opposite side of the body of the reported right hip pain. The examiner stated that he was unaware of any contralateral hip disorders that cause the intermittent groin (left testicle) symptoms the Veteran previously reported. The examiner also noted that he was unable to confirm a current chronic diagnosis with current available records and examination. Therefore, no nexus or plausible relationship is established. The Veteran does not have a diagnosis of the claimed condition of left groin pain. During conversation, the Veteran reported left groin pain that resolved during service. The examiner also determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that during service, the condition was acute only. There is no evidence of chronicity of care. The Veteran reported left testicular pain was resolved in service with prescribed antibiotics. The examiner noted that it is not a result of repeated parachute jumps. While the Veteran believes he has a current diagnosis of disability manifested by groin pain, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge and the ability to interpret diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a gastrointestinal disorder to include gastroesophageal reflux disease (GERD). Another remand is necessary as there has not been substantial compliance with the directives in the October 2019 Board remand. Specifically, the October 2019 Board remand noted that in part a new examination and medical opinion was warranted with respect to the Veteran's service connection claim for a right ankle disorder to address the Veteran's lay statements as to continuous or recurrent symptoms of a right ankle disability since service to the present. The Board also requested that the RO arrange for the Veteran to undergo a VA examination and medical opinion regarding the Veteran's service connection claim for GERD and requested that the examiner address the Veteran's lay statements as to he experienced symptoms of GERD during active military service with recurrent symptoms since service to the present. The October 2019 VA examiner did not address the Veteran's lay statements with respect to the onset and continuous or recurrent nature of his right ankle symptoms and gastrointestinal symptoms as requested in the October 2019 Board remand. The United States Court of Appeals for Veterans Claims has held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, another remand is necessary to ensure that the RO obtains a VA medical opinion that addresses the lay statements of the Veteran. The matters are REMANDED for the following action: 1. Arrange to obtain a medical opinion from a orthopedist, if possible, or other appropriate medical specialist addressing the current nature and likely etiology of any right ankle disorder. The claims file and a copy of this remand must be made available to the medical specialist for review and the medical opinion should reflect that the claims file was reviewed. The opinion must reflect full consideration of the Veteran's documented medical history and the Veteran's assertions. Following a review of all the relevant evidence and considering accepted medical principles, the medical specialist is asked to identify any disorders associated with the Veteran's right ankle pain and reduced range of motion. Thereafter, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's symptoms of pain and reduced range of motion or any right ankle disability documented in the claims file had its onset during service or is otherwise medically related to service-to include physical trauma associated with hard landings during multiple parachute jumps and inservice documentation of right ankle pain. In rendering the requested opinions, the examiner must consider and discuss all in and post-service medical and other objective evidence. The medical specialist must also address all lay assertions, to include the Veteran's competent assertions as to in-service events, as well as the nature, onset, and continuity of symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history. Thus, competent lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 2. Arrange to obtain a medical opinion from a gastroenterologist, if possible, or other appropriate medical specialist addressing the current nature and likely etiology of any stomach/gastrointestinal disorder to include GERD. The claims file and a copy of this remand must be made available to the medical specialist for review and the medical opinion should reflect that the claims file was reviewed. The opinion must reflect full consideration of the Veteran's documented medical history and the Veteran's assertions. Following a review of all the relevant evidence and considering accepted medical principles, the medical specialist should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's GERD or any other stomach/gastrointestinal disorder documented in the claims file had its onset during service or is otherwise medically related to service-to include the documented inservice complaint of upset stomach. 3. In rendering the requested opinions, the examiner must consider and discuss all in and post-service medical and other objective evidence. The examiner must address all lay assertions, to include the Veteran's competent assertions as to the nature, onset, and continuity of gastrointestinal symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history. Thus, competent lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.