Citation Nr: 21071480 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-22 675 DATE: November 30, 2021 ORDER Entitlement to service connection for a right knee disability, diagnosed as osteoarthritis and patellofemoral pain syndrome is granted. Entitlement to service connection for a left knee disability manifested by pain is granted. Entitlement to service connection for bilateral pes planus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, a right knee disability, diagnosed as osteoarthritis and patellofemoral pain syndrome, began during combat service. 2. The Veteran's left knee disability, which is manifested by pain, is secondary to the service-connected right knee osteoarthritis and patellofemoral pain syndrome. 3. The Veteran's bilateral pes planus that preexisted his active duty service was aggravated by such service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, diagnosed as osteoarthritis and patellofemoral pain syndrome are met. 38 U.S.C. §§ 1110, 1131, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability manifested by pain, as secondary to the service-connected right knee osteoarthritis and patellofemoral pain syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for establishing service connection for bilateral pes planus, based on service aggravation, are met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1987 to November 1990. He also served as a member of the Army Reserve and the National Guard. His service medals and decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In January 2020, the Veteran testified at a Video Conference Board Hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. This case was previously remanded by the Board in February 2020 and in June 2021, for additional development. The case has since been returned to the Board for further appellate action. As an initial matter, in October 2020, the Veteran was notified that complete service treatment records (STRs) for the Veteran's service with the Army Reserve and National Guard for the period from November 1990 to March 1994, and March 1994 to October 1995, were not obtained. VA has a heightened duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: (1) the existence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Under section 3.310 (a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Most recently, the United States Court of Appeals for Veterans Claims (Court) held that secondary service connection is warranted if a condition is actually caused or aggravated by a service-connected disability; however, it is not warranted in a circumstance where merely the claimed condition might have been less severe were it not for the service-connected disability. Spicer v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1634, 2021 WL 4167351. Stated another way, secondary service connection is not available for conditions that are prevented from improving by a service-connected disability, where the service-connected disability did not cause (or aggravate) that condition. Id. If a Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Every reasonable doubt is to be resolved in the Veteran's favor and is rebuttable only by clear and convincing evidence. 38 U.S.C. § 1154 (b). Furthermore, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). However, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden, 381 F.3d, at 1167). 1. Entitlement to Service Connection for a Right Knee Disability, Diagnosed as Osteoarthritis and Patellofemoral Pain Syndrome During his January 2020 Board hearing, the Veteran described the onset of right knee pain after marching distances with heavy rucksacks, jogging, running, doing bear crawls, and other essential infantry duties. The June 2021 VA examination indicates current diagnoses of right knee osteoarthritis and right knee patellofemoral pain syndrome. The first element of Shedden is met. The Board notes that the Veteran's DD-214 states that the Veteran's military occupational specialty (MOS) was infantryman. The DD-214 also states that the Veteran served in Operation Just Cause in Panama and that he received the Combat Infantryman Badge. The Veteran's military personnel record documents "duty in imminent danger pay area (panama)" for the period from December 1989 to January 1990. Marching distances with heavy rucksacks, jogging, running, doing bear crawls, and other essential infantry duties is consistent with the circumstances, conditions, or hardships of the Veteran's combat service. As such, VA must presume the occurrence of the in-service injury. See 38 U.S.C. § 1154 (b). Furthermore, medical evidence shows that the Veteran has been diagnosed with right knee osteoarthritis and right knee patellofemoral pain syndrome and the Veteran reports the onset of this condition during combat. In this regard, a July 2015 VA treatment record documents the Veteran's complaint of stiffness and pain in his knees when he stands up; that he was infantry and had to carry heavy packs and walk for prolonged periods of time; and that he has experienced bilateral knee pain since active duty. This record further notes the Veteran was offered physical therapy, but could not afford it. Such could explain the gap in treatment for a right knee disability after service. The second element of Shedden is met. Even when the 1154 (b) presumption applies, a Veteran seeking compensation must still show that there is a causal relationship between the present disability and the injury incurred during active duty. See Reeves, 682 F.3d at 999 n. 9. However, a combat Veteran has the right to invoke the 1154 (b) presumption in order to show that he or she incurred the disability itself while in service as opposed to only the cause. Id. at 999. In this regard, the Veteran maintains that he experienced a right knee disability during service which has continued since active service. See January 2020 hearing transcript. He is considered competent to describe the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). While the record contains evidence weighing against service connection, specifically the August 2020, October 2020, and June 2021 VA medical opinions, the Board finds that it does not constitute clear and convincing evidence against the in-service incurrence of a right knee disability. The August 2020 and October 2020 VA medical opinions indicated the Veteran had no current right knee diagnosis. These VA medical opinions were determined to be inadequate. See June 2021 Board Remand. The June 2021 VA medical opinion indicated the Veteran's STRs were negative for complaints or diagnoses prior to or during the Veteran's service. The examiner stated the Veteran was not seen for right knee pain or other complaints until 2015. The examiner concluded the Veteran's right knee patellofemoral pain syndrome was due to standing for prolonged periods at his post-separation occupation and that the Veteran's right knee osteoarthritis was due to age. The probative value of this opinion is limited, as the VA examiner failed to consider Veteran's competent reports of right knee pain, consistent with his report of marching distances with heavy rucksacks, jogging, running, doing bear crawls, and other essential infantry duties in service, and his documented combat service in Panama in determining whether there was an etiological relationship between right knee osteoarthritis and patellofemoral pain syndrome and his in-service right knee pain. Here, however, the Veteran's documented combat service serves as sufficient proof under 38 U.S.C. § 1154 (b). The June 2021 VA examiner's opinion is also unclear as why it would only be the post-service physically demanding employment, but not physically demanding in-service physical infantry activity, that would have contributed to the right knee osteoarthritis and patellofemoral pain syndrome. Put another way, it is not clear to the Board why the examiner attributed the Veteran's right knee disability to one type of physically demanding activity (post-service employment) instead of another (infantry service) when the Veteran experienced both over his lifetime. The Board will, therefore, resolve any doubt in the Veteran's favor and finds that service connection for a right knee disability, diagnosed as osteoarthritis and patellofemoral pain syndrome is warranted in accordance with VA's combat presumption and 38 U.S.C. § 1154 (b). 2. Entitlement to Service Connection for a Left Knee Disability Manifested by Pain Throughout the appeal period, the Veteran has competently and credibly reported chronic left knee pain. During his hearing, the Veteran testified that even though his knees would bother him in service, it was not until his knee pain worsened in 2014 and 2016 that he sought treatment. See January 2020 hearing transcript. The July 2015 VA treatment record notes the Veteran's report of bilateral knee pain which the Veteran associated with his military infantry duties of marching distances with heavy rucksacks, jogging, running, doing bear crawls, and other essential infantry duties. The record also notes the Veteran's report that he has experienced bilateral knee pain since active duty. The Veteran was afforded an August 2020 VA examination for his knee condition. At that time, the Veteran reported pain affecting his ability to stand and walk for prolonged periods. On examination, the examiner noted that left knee pain significantly limited functional ability with repeated use. However, the examiner indicated the Veteran had no current left knee diagnosis. The examiner further opined that she "cannot support functional impairment if no diagnosis is made." In an October 2020 addendum VA medical opinion, the examiner expressed her agreement that the Veteran has experienced chronic knee pain. However, as there was no diagnosis for the left knee, she stated she was unable to provide functional impairment without resorting to mere speculation. On remand, the Veteran was afforded a VA examination in June 2021 for his knee condition. The examiner noted the Veteran's report that his knees get swollen after work activity and that the Veteran "used to be more active." On examination, the examiner noted objective evidence of left knee pain with weightbearing, active motion, and passive motion. The examiner opined the Veteran's left knee pain causes functional loss "as evident by the loss of range of motion." A "disability" for VA purposes includes a functional impairment, even in the absence of underlying pathology. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment). Accordingly, the Board finds the evidence of record establishes that the Veteran has current left knee functional impairment sufficient to establish a current disability. Further, as indicated above, the Veteran is now service connected for a right knee disability, diagnosed as osteoarthritis and patellofemoral pain syndrome. The first and second Wallin elements are met. The crux of this case centers on whether there is an etiological relationship between the Veteran's left knee disability and the service-connected right knee disability. In this regard, the Board notes that the June 2021 VA examiner remarked that while imaging did not support a diagnosis for the left knee, that "it seems like the weakness is due to the left knee overuse due to right knee osteoarthritis." The Board finds this examiner's opinion persuasive. The Board can infer from an overall reading of the remarks that the examiner was reasoning that right knee osteoarthritis did likely result in (or aggravate) the Veteran's left knee disability manifested by pain. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (a VA examination report "must be read as a whole" to determine the examiner's rationale.). At present, there is no other probative evidence addressing this secondary nexus question. As such, the evidence is at least in equipoise as to a secondary nexus. As such, the benefit-of-the-doubt doctrine is applicable, and therefore, service connection for a left knee disability manifested by pain is warranted on a secondary basis. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to Service Connection for Bilateral Pes Planus A Veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). If a preexisting disability is noted upon entry into service, service connection may still be granted based on in-service aggravation of that disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Due regard will be given to the places, types, and circumstances of service, and combat duty and other hardships of service will be accorded particular consideration. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. See 38 C.F.R. § 3.306 (b) (2). The Veteran contends that either a new injury occurred, or that any preexisting foot condition worsened, during his active service as an infantryman in Operation Just Cause in Panama. At his January 2020 hearing, the Veteran testified that he did not experience pain or other symptoms from a flat foot condition prior to entering service. He testified that he did not begin having physical problems until he got to his duty station. He testified that his infantry duties included marching distances with heavy rucksacks, jogging, running, doing bear crawls, and other essential infantry duties. See January 2020 hearing transcript. The Veteran is competent to report increases in foot pain and symptoms. See 38 C.F.R. § 3.159 (a) (2); Falzone, 8 Vet. App. at 405. The Veteran's STRs include his October 1987 entrance examination, wherein the examiner noted that the Veteran had mild asymptomatic pes planus (emphasis added). While the Veteran's STRs do not contain reports of bilateral foot pain, the Veteran has consistently and credibly reported that his feet would ache in service. See July 2016 VA examination report and January 2020 hearing transcript. As noted above, if an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay or other evidence, and due regard will be given the places, types, and circumstances of service. 38 U.S.C. § 1154 (b); 38 C.F.R. §§ 3.304 (d), 3.306 (b) (2). Given his combat MOS, a rebuttable presumption of aggravation of preexisting bilateral pes planus has been established here. VA has the burden to rebut this presumption of aggravation by clear and unmistakable evidence showing there was no increase in the severity of the preexisting condition, or that any increase was the result of natural progression. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The presumption of aggravation has not been rebutted with clear and unmistakable proof. The evidence of record includes the October 2020 addendum VA medical opinion finding the Veteran's congenital bilateral pes planus did not increase in severity during the Veteran's active service. As rationale, the examiner stated the Veteran's bilateral foot condition was asymptomatic for the entire time that he had in the service, as medical records showed no complaints of foot pains while in the service. A June 2021 VA medical opinion was obtained wherein the examiner opined the Veteran's bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated the Veteran had no medical visits due to his bilateral pes planus until 2015. The examiner added that the Veteran was in the military only for two years and eight months and he did not report any pain in his feet during active duty. The June 2021 VA medical opinion is of little probative value. First, the examiner relied on an absence of documented treatment during after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See Fountain, 27 Vet. App. at 272-75. Second, the VA examiner failed to consider Veteran's competent reports that he marched distances with heavy rucksacks, jogged, ran, did bear crawls, and other essential infantry duties which he contends worsened his bilateral pes planus condition. Such does not rise to the evidentiary threshold that the symptomatic manifestations during the Veteran's combat service were due to the natural progress of his bilateral pes planus condition. Thus, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral pes planus that preexisted his active duty service was aggravated by such service. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for bilateral pes planus, based on service aggravation, is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, Associate 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.