Citation Nr: 21073405 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-52 391 DATE: December 8, 2021 ORDER Service connection for a back disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. Service connection for a left ankle disorder is denied. Service connection for a right ankle disorder is denied. FINDINGS OF FACT 1. A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest to a compensable degree within one year of separation from active duty. 2. A left knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest to a compensable degree within one year of separation from active duty. 3. A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest to a compensable degree within one year of separation from active duty. 4. A left ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 5. A right ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right ankle disorder have not been 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 July 1960 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2019 and June 2021, the Board remanded the instant claims for additional development and they now return for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left ankle disorder. 5. Entitlement to service connection for a right ankle disorder. The Veteran contends that he has bilateral ankle, back, and bilateral knee disorders as a result of his in-service firefighting duties. In this regard, the record reflects that he served as a firefighter or fire protection specialist for over eight years between 1960 and 1968. Additionally, the Veteran's service treatment records (STRs) reflect that, in December 1967, he was treated for a left ankle sprain. In April 1984, he reported back pain after running recently. The diagnosis was "musculoskeletal paincostochondritis ?" In a July record, without a year, it was noted that the Veteran reported intermittent pain for the prior three weeks in his low back, right knee, and both ankles. X-rays were normal except slight lumbar scoliosis. In connection with the Veteran's May 1988 separation examination, it was noted that he had recurrent back pain since 1969, due to lifting, diagnosed as slight lumbar scoliosis. The Veteran further reports that he has experienced pain related to such joints since his military service. Back and Bilateral Knee Disorders The Veteran was afforded VA examinations in June 2014 and June 2015 to determine the nature and etiology of his back and bilateral knee disabilities. At such time, diagnoses of degenerative arthritis and spondylosis of the spine and osteoarthritis of the bilateral knees were rendered. However, the examiners found that such were not related to the Veteran's military service. In this regard, the June 2014 VA examiner opined that his current condition most often occurs as a chronic process from "wear and tear" and is also part of the normal aging process of the spine and knees. He further observed that there was no significant lumbar spine or knee injury and no objective evidence of a residual lumbar spine or knee pathology documented in the service treatment records. Consequently, the examiner found that it was unlikely that the Veteran's current back and bilateral knee are related to an in-service injury, event, or illness. Additionally, the July 2015 VA examiner further found that the Veteran's osteoarthritis of the spine and bilateral knees was consistent with age, an April 1978 service treatment record was the last active duty documentation of painful joints, and there was no evidence of osteoarthritis prior to 2002. However, as noted in the November 2019 Board remand, neither VA examiner considered whether the Veteran's back and bilateral knee disorders were related to his in-service firefighting duties, or addressed his reports of a continuity of symptomatology. The Board further noted it appeared that the July 2015 VA examiner's rationale was based on an inaccurate factual premise as the Veteran's STRs reflected ongoing joint complaints through his separation examination in May 1988. Thus, the Board remanded the claims to obtain an addendum opinion addressing the aforementioned matters. Accordingly, in August 2020, a VA examiner opined that, based on a review of the Veteran's STRs/medical records and previous examinations, his back and bilateral knee disorders were less likely than not related to his military service, to include his in-service duties related to firefighting and/or his reports of back and bilateral knee pain as documented in his STRs. In support thereof, he reported that there was no diagnosis of any chronic back or knee problems in the Veteran's STRs, and he was diagnosed with such disorders several years following his discharge from military service (2002, 2014, and 2015). However, as noted in the June 2021 Board remand, such opinion appeared to be based on an inaccurate factual history as a July STR (without a year) reflected that a back X-ray demonstrated slight lumbar scoliosis. The Board further noted that the sole basis of a negative opinion could not be based on the lack of medical documentation demonstrating a continuity of care, especially in light of the fact that the Veteran had reported the onset of back and bilateral knee pain in service (and such complaints were reflected throughout his STRs) with a continuity of symptomatology thereafter. Consequently, the Board again remanded the claims to obtain an addendum opinion that addressed all the evidence of record, to include the Veteran's in-service and post-service symptoms. Subsequently, in June 2021, a VA examiner opined that, based on a review of the Veteran's STRs, his available medical records within one year of military separation, the June 2021 Board remand, the Veteran's current medical records, and his lay statements, his back and bilateral knee disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he reported that, with respect to the Veteran's back disorder, the July STR (without a year) showed that he had a three-week history of intermittent low back pain and right knee pain, and X-rays showed only "slight lumbar scoliosis." Here, the examiner indicated that such record appeared to be a follow-up record by the same provider, judging from the handwriting, who saw the Veteran in July 1969. Such STR reveals that the Veteran had recurrent episodes of back pain for the previous two months, and right knee pain. Additionally, he stated that, while the Veteran's May 1988 separation examination noted recurrent back pain since 1969, his April 1978 Report of Medical History reflected that he answered "no" to whether he had recurrent back pain, which contradicted what was written on his separation examination. Thus, the examiner found that he could only assume that his recurrent back pain started sometime after April 1978. Further, the examiner indicated that an April 1984 STR showed that the Veteran complained of back pain a few days after running; however, it was thoracic in nature, i.e., "between sternum and spine," and there was no mention of low back pain. In this regard, the Veteran was diagnosed with "m-s pain, ?costochondritis." However, he determined that the follow-up STR the next day, which assessed the Veteran as having "resolving m-s pain," was likely written by a medical technician or assistant (and clearly not the provider) as it incorrectly stated the Veteran's complaint as "F/U LBP [i.e., follow-up low back pain]." Moreover, the examiner noted that the Veteran's October 1987 Dental Patient Medical History demonstrated that he did not circle arthritis as a disorder. Furthermore, the June 2021 VA examiner noted that only a portion of the Veteran's 1988 separation examination was of record, and such did not include a report of physical examination or a complete medical history. He further observed that there were no medical records from the time that the Veteran retired in 1988 until at least one year after his separation. Moreover, the examiner indicated that, in his August 2019 written statement, the Veteran noted a diagnosis of lumbar scoliosis, and not osteoarthritis/degenerative arthritis of the spine. Furthermore, he noted that, while the Veteran reported being diagnosed with osteoarthritis in 1970 and his low back pain continued long after his retirement from military service, there was no radiologic evidence he had such while in service or within one year after his separation as his lumbar spine arthritis was diagnosed by X-ray in July 2014. Moreover, with respect to the Veteran's bilateral knee disorder, the June 2021 VA examiner noted that, as previously discussed, the Veteran had pain in his knees during service. However, for the aforementioned reasons, there was no evidence of osteoarthritis, which is made by radiologic diagnosis, of the knees while in service. In this regard, the examiner reported that the Veteran stated he was diagnosed with osteoarthritis in 1970; however, his referral to internal medicine due to intermittent joint pain in November 1970 revealed that his X-rays were negative, and the provisional diagnosis was "early rheumatoid arthritis." Here, he noted that a July 1969 X-ray report of the feet and lumbar spine showed "no significant abnormalities." The examiner further noted that it was very confusing that a February 2017 treatment record showed that the Veteran's physician wrote "M17.0-715.96 Bilateral primary osteoarthritis of knee (Tricompartmental, DX/ 1970)" as tricompartmental arthritis was clearly a radiologic diagnosis and there was no corresponding X-ray. Further, the examiner reported that the first knee X-rays of record were from March 2002, which showed mild bilateral osteoarthritis. In this regard, he explained that the fact that the Veteran's osteoarthritis was mild 14 years after he completed military service supported the development of such disease after military service. Here, he noted that it would be extremely unlikely that a person with tricompartmental osteoarthritis in 1970 would have only mild osteoarthritis 32 years later, especially with an ongoing arthritic knee disorder. An additional addendum opinion from the June 2021 VA examiner was rendered in August 2021. At such time, he noted that, even though the Veteran was a firefighter, there was no objective evidence of either degenerative arthritis/spondylosis of the spine or osteoarthritis of the bilateral knees existing at the time of his military service. The Board affords great probative weight to the June 2021 and August 2021 VA opinions concluding that the Veteran's current back and bilateral knee disorders are unrelated to his military service as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the opinions contain a clear conclusion with supporting data, as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board acknowledges that, in August 2019 and August 2021, the Veteran's private physician stated that, as there had been multiple medical visits and encounters during his military service for complaints of back pain, such suggest at least a casual relation between his military duties and his low back pain. However, as such opinions are speculative in nature, indicating only a suggestion of a relationship, the Board affords such opinions no probative weight. Id.; Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that equivocal language such as "may be" is the same as "may not be" and therefore cannot provide the requisite nexus for a grant of service connection). Bilateral Ankle Disorder At a June 2014 VA examination, the examiner noted that, while the Veteran had symptoms related to his bilateral ankles, he did not have a current diagnosis of an ankle disorder. Thus, no etiological opinion was offered. Similarly, a July 2015 VA examiner determined that, despite the Veteran's subjective reports of pain and flare-ups, he did not have a diagnosis of a left or right ankle disorder as such were normal on physical examination. However, pursuant to Saunders v. Wilkie, 886 F.3d 1356, the Board remanded the Veteran's claims in order to afford him another VA examination and addendum medical opinion to determine whether he had a current left and/or right ankle disability related to service in November 2019. The Veteran was afforded the requested VA examination in August 2020, at which time the examiner noted a diagnosis of bilateral ankle sprain; however, it was unclear whether such diagnosis was a characterization of the Veteran's in-service left sprain in December 1967 (as he recounted during the medical history portion of the examination) or a current disorder as the examiner found no objective pain on examination and X-rays of the ankles were normal. Ultimately, she opined that the Veteran's bilateral ankle disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As pertinent to the right ankle, the examiner indicated that there were no reported symptoms, diagnosis, or treatment for a right ankle disorder during military service. With respect to the left ankle, she noted that the Veteran had a left ankle sprain diagnosis rendered in October 1970 that was acute only. Further, the examiner reported that MRIs of the Veteran's ankles dated in December 2009 and January 2011 were normal, there was no objective evidence to support a chronic right ankle disorder, and no evidence of chronicity of care of a left ankle disorder. However, as noted in the June 2021 Board remand, such opinion appeared to be based on an incomplete factual history as the Veteran's STRs reflected that he was treated for a left ankle sprain on one instance in December 1967. The Board further noted that the examiner did not consider whether the Veteran's bilateral ankle disorder was related to his in-service firefighting duties, or address his reports of a continuity of symptomatology as directed in the November 2019 Board remand. Thus, an addendum opinion was obtained in January 2021 from the same VA examiner, at which time she indicated that the Veteran's STRs were silent for objective evidence of a right ankle disorder during military service (and his military duties as a firefighter was not sufficient to render a diagnosis), and the record was silent for reported symptoms, diagnosis, or treatment for a right ankle disorder after separation from military service. The examiner further indicated that MRIs of the right ankle dated in December 2009 and January 2011 were normal. She also reported that, during the August 2020 VA examination, physical examination of the bilateral ankles was grossly normal, X-ray were negative for any ankle-related disorder, and the Veteran's symptoms were subjective only. Thus, the examiner concluded that the Veteran's subjective bilateral ankle symptoms were not related to a military event, activity of military duty as a firefighter, or any other activity during military service. However, as noted in the June 2021 Board remand, at a February 2021 VA examination, conducted in connection with the evaluation of the severity of the Veteran's service-connected rheumatoid arthritis, a diagnosis of tendonitis of the bilateral ankles, supported by objective findings of limitation of bilateral ankle motion and mild pain across the Achilles tendon and noted functional impairment, was rendered. The Board further noted that such opinion also appeared to be based on an incomplete factual history as the Veteran's STRs reflect that he was treated for a left ankle sprain in December 1967; a July STR, without a year, revealed his complaint of intermittent pain the previous three weeks in both ankles; and an October 1970 STR indicated his complaint of pain and swelling in his left achilles tendon. Thus, the Board remanded the claims to obtain an addendum opinion addressing the aforementioned matters. Accordingly, in July 2021 a VA examiner opined that the Veteran's bilateral ankle disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he reported that there was no evidence of achilles tendinitis while in service or proximate to service, and such was not diagnosed until the 2021 VA examination. In this regard, the examiner indicated that sprains and/or ankle pain was documented in service, including in December 1967, July, and October 1970, and on the April 1978 periodic examination, which noted multiple joint aches and pains, possibly related to rheumatoid arthritis. However, there was no mention of achilles tendinitis, and there were no records of such until the 2021 VA examination. Here, he noted that there would be no confusing achilles tendinitis with any of the Veteran's other complaints, including ankle sprains and/or rheumatoid arthritis, as achilles tendinitis is an overuse injury or due to an acute strain and is unlikely to be related to rheumatoid arthritis or an ankle sprain occurring 30 plus years prior, and such was separate anatomically and pathophysiologically from the Veteran's other ankle complaints. Additionally, the examiner stated that achilles tendinitis was a new diagnosis (and mild) and there was no evidence of aggravation beyond its natural course due to any cause, including any events in service or service-connected conditions. He noted that there were no changes consistent with rheumatoid or degenerative arthritis on the 2020 X-rays. The Board affords great probative weight to the July 2021 VA opinion concluding that the Veteran's current bilateral ankle disorder is unrelated to his military service as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the opinion contains a clear conclusion with supporting data, as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. 124. Notably, there is no medical opinion to the contrary. Other Considerations The Board also considered the Veteran's assertions as to the etiology of his bilateral ankle, back, and bilateral knee disorders; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed bilateral ankle, back, and bilateral knee disorders is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the Veteran's opinions as to the onset and etiology of his bilateral ankle, back, and bilateral knee disorders is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that the probative evidence of record reflects that bilateral ankle, back, and bilateral knee disorders are not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis of the latter joints did not manifest to a compensable degree within one year of separation from active duty. Thus, service connection for these disorders is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for bilateral ankle, back, and bilateral knee disorders. As such, that doctrine is not applicable in the instant appeal and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.