Citation Nr: 21074027 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 09-22 011 DATE: December 14, 2021 ORDER Entitlement to service connection for a bilateral knee disability, to include a joint disorder, is denied. Entitlement to service connection for a bilateral hand disability, to include a joint disorder, is denied. Entitlement to service connection for a bilateral foot disability, to include a joint disorder, is denied. FINDINGS OF FACT 1. Any current bilateral knee disorder, to include degenerative joint disease, is not of service origin. 2. Any current bilateral hand disorder, to include degenerative joint disease, is not of service origin. 3. Any current bilateral foot disorder, to include pes planus and degenerative joint disease, is not of service origin CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee disability, to include a joint disorder, have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for bilateral hand disability, to include a joint disorder, have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for bilateral foot disability, to include a joint disorder, have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from April 1981 to April 1984. This matter was previously before the Board in August 2011, at which time it was remanded for further development. The Veteran appeared at a Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board in February 2011. The Veteran also testified at a hearing before the undersigned Veterans Law Judge in April 2017. Transcripts of the hearings are of record. In April 2021, the Board remanded the issues on the title page for further development. The requested development has been completed and the matter is ready for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303 (b) apply to those claims. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Arthritis will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). As it relates to the claims of service connection a joint disorder of the hands, knees, and feet, the Board notes that that the Veteran has consistently reported having been involved in a jeep accident while stationed in Germany in December 1983. Although treatment records do not reveal that the Veteran was involved in a jeep accident at that time, the Board finds that his consistent reports of having been in a jeep accident at that time are consistent with the facts of his service. Moreover, the Veteran's claimed jeep accident occurred subsequent to his service separation examination. Given the above, the Board will find that his statements with regard to the jeep accident, including the jeep having flipped over and his being hospitalized, are credible. In an August 2020 medical opinion prepared in conjunction with the Board remand, the VA examiner indicated that it was less likely than not that the Veteran's claimed joint disorder of the hands, knees and feet were incurred in service or caused by a claimed inservice injury, event or illness, to include having been involved in a jeep accident during service. The examiner stated that as there was no record of injury to the hands, knees, or feet during service, there was no link between these disorders and the Veteran's jeep accident in 1984. In an April 2021 remand, the Board noted that while the requested opinion was supplied, the rationale supplied as the basis for the opinion was that there was no evidence of hand, feet, or knee injuries in service. The Board noted that the Veteran's statements with regard to the jeep accident were credible and that the Veteran had reported and testified as to having sustained injuries to his hands, feet, and knees during the jeep accident. Thus, the basis for the negative opinion was based upon a faulty premise and warranted additional development. The matter was again remanded for additional opinions, with the examiner having to concede that the Veteran sustained injuries to his hands, knees and feet, during service as a result of the 1984 jeep accident. Examinations and the required opinions were performed and obtained in September 2021. Examination of the hands resulted in a diagnosis of degenerative arthritis, other than post-traumatic. Examination of the feet resulted in a diagnosis of pes planus. Examination of the knees resulted in a diagnosis of degenerative arthritis of the knees, other than posttraumatic. In the September 2021 medical opinion, the examiner indicated that the injuries to the hands, knees and feet in service were conceded and that the Veteran was competent to report these injuries. The examiner noted that the Veteran's current foot disorder was pes planus; she noted that the Veteran reported he had pain with dorsiflexion and plantar flexion but no pain with palpation of plantar fascia. The Veteran was noted to have had negative foot x rays in October 2020. She further indicated that the Veteran's current knee disorder was bilateral knee arthritis and that his current hand disorders were degenerative arthritis and bony sarcoidosis of the hands. The examiner opined that it was not at least as likely as not that the Veteran's current hand disorders, to include any joint disorder, had their origin in service or were otherwise related to service. The examiner noted that the Veteran did not have documentation of an injury to his hands in service. He reported a 1984 Jeep accident in which he injured his hands. She indicated that the Veteran had bilateral hand degenerative arthritis and sarcoid involvement of his bones in his hands. She stated that degenerative arthritis occurred due to wear and tear and in this case would be exacerbated by the inflammation from his bony sarcoid diagnosis. She noted that arthritis "causes cartilage the hard, slippery tissue that covers the ends of bones where they form a joint to break down." She stated that the Veteran had no documented hand injuries in service and the minor trauma he claimed to have suffered during service would not be the sole cause of the arthritis he developed in his hand joints 20 plus years after the accident in service. The examiner further opined that it was not at least as likely as not that the Veteran's current knee disorders, to include any joint disorder, had their origin in service or were otherwise related to service. The examiner noted that the Veteran did not have documentation of a knee injury in service. He reported a 1984 Jeep accident in which he injured his knees. He currently had a diagnosis of bilateral knee joint arthritis. This condition did not develop until greater than 20 years after his discharge from service. She noted that degenerative arthritis occurred due to wear and tear, but could occur with trauma to a joint. Arthritis, "causes cartilage the hard, slippery tissue that covers the ends of bones where they form a joint to break down." She stated that it was unlikely a minor injury to the bilateral knees in 1984 would be the sole cause of degenerative arthritis that was not diagnosed until more than 20 years after the accident. The examiner further opined that it was not at least as likely as not that the Veteran's current foot disorder, to include any joint disorder, had its origin in service or was otherwise related to service. The examiner noted that the Veteran only had a foot diagnosis of bilateral pes planus. Pes planus was the flattening of the arch of the foot and was either congenital or acquired. Acquired pes planus was due to foot trauma, overuse, diabetes, obesity, or congenital ligamentous laxity. She stated that the bilateral pes planus would not have been caused by his minor foot injuries incurred in the 1984 Jeep accident. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against the conclusion that the Veteran's current bilateral knee disorder had its onset in service. The Veteran's service treatment records contain no complaints or findings of knee problems, with no notation of knee problems until many years following service. The Board does note that the Veteran reported having injured his knees in the 1984 jeep accident, which has been found to be credible; however, there were no findings of left or right knee problems in the years immediately following service. The contemporaneous evidence shows that the Veteran did not report that he had knee problems during service nor were there reports of knee problems for many years following service. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. As to the Veteran's belief that his current bilateral knee disorder is related to his period of service, the question of causation of a complex medical condition, such as the degenerative joint disease, extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. It has not been shown that he has the requisite training to diagnose the cause of his current degenerative joint disease of the knees. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this regard, the September 2021 examiner, following a comprehensive review of the record and examination of the Veteran, opined that Veteran's bilateral knee disorder was not related to his period of service. The Board is placing greater weight upon the VA opinion as it was rendered after a thorough review of the record with detailed rationale being set forth to support the opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Because the record does not show continuous symptoms of bilateral knee problems since service, degenerative joint disease manifested to a compensable degree within one year of service separation, or a bilateral knee disorder otherwise related to service, direct and presumptive service connection for a bilateral knee disorder may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a bilateral knee disorder, to include degenerative joint disease. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against the conclusion that the Veteran's current bilateral hand disorder had its onset in service. The Veteran's service treatment records contain no complaints or findings of hand problems, with no notation of hand problems until many years following service. The Board does note that the Veteran reported having injured his hands in the 1984 jeep accident, which has been found to be credible; however, there were no findings of left or right hand problems in the years immediately following service. The contemporaneous evidence shows that the Veteran did not report that he had hand problems during service nor were there reports of hand problems for many years following service. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. As to the Veteran's belief that his current bilateral hand disorder is related to his period of service, the question of causation of a complex medical condition, such as the degenerative joint disease, extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. It has not been shown that he has the requisite training to diagnose the cause of his current degenerative joint of the hands. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this regard, the September 2021 examiner, following a comprehensive review of the record and examination of the Veteran, opined that the Veteran's bilateral hand disorder was not related to his period of service. The Board is placing greater weight upon the VA opinion as it was rendered after a thorough review of the record with detailed rationale being set forth to support the opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Because the record does not show continuous symptoms of bilateral hand problems since service, degenerative joint disease manifested to a compensable degree within one year of service separation, or a bilateral hand disorder otherwise related to service, direct and presumptive service connection for a bilateral hand disorder may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a bilateral hand disorder, to include degenerative joint disease. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As to the issue of service connection for a bilateral foot disorder, to include pes planus, the Board notes that with regard to pes planus, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2020). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1) (2020). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306 (2020); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2020). The Veteran contends that his current foot disorder is related to his inservice jeep accident. The Board finds that bilateral pes planus was not "noted" at the time of the Veteran's February 1981 service induction report of medical history, with the Veteran checking the "no" box when asked if he had or had ever had foot trouble. See 38 C.F.R. § 3.304(b) (2020). Bilateral pes planus was also not indicated at the time of the February 1981 service induction examination; therefore, the Board finds that bilateral pes planus was not noted at service entrance and the presumption of soundness attaches. As such, the burden has shifted to VA to rebut the presumption of soundness. Wagner, 370 F.3d 1089. After reviewing all of the evidence of record, the Board finds that the weight of the evidence demonstrates that the currently diagnosed bilateral pes planus did not clearly and unmistakably preexist service and was not aggravated in service. The Veteran has not indicated, nor has he submitted, any evidence that his pes planus existed prior to service. He has indicated that his foot problems are as a result of having been involved in a jeep accident in service. The existence of such a condition prior to service is not enough to rebut the presumption of soundness, absent any findings of bilateral pes planus shown at service entrance. See 38 C.F.R. § 3.304 (2020). Accordingly, the Board finds that the evidence does not show, clearly and unmistakably, that bilateral pes planus both preexisted service and was not aggravated in service. Therefore, that the presumption of soundness at service entrance has not been rebutted by clear and unmistakable evidence, and the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097 (2016). While the Veteran has currently diagnosed bilateral pes planus, a bilateral foot condition was not identified in service and the earliest evidence of bilateral pes planus is decades following service. At the time of the Veteran's November 2020 and September 2021 VA examinations, he was diagnosed with pes planus. Following examination of the Veteran and review of the file, the examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. The examiner stated that acquired pes planus was due to foot trauma, overuse, diabetes, obesity, or congenital ligamentous laxity. She indicated that the bilateral pes planus would not have been caused by his minor foot injuries incurred in the 1984 Jeep accident. The Veteran contends that he did not have any problems with his feet prior to service and that his foot problems are related to service. Although the Veteran is competent to report an in-service event or injury, to which he had first-hand knowledge, the Veteran is not competent to provide the etiology of his bilateral pes planus, which the Board finds is a question requiring medical expertise. See 38 C.F.R. § 3.159(a) (2020). Based on review of the evidence of record, the Board finds that the Veteran's bilateral pes planus is not related to service. As discussed above, the Board finds that the Veteran sustained a foot injury in service as a result of the jeep accident. The Board finds probative the competent and credible negative nexus opinion provided by the September 2021 VA examiner. The basis for the negative opinion was consistent with the evidence of record as to the lack of documentation as to treatment, diagnosis, or symptomology of bilateral pes planus while in service. Neither the Veteran nor his representative have presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for bilateral pes planus. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the Veteran's claim of entitlement to service connection of bilateral pes planus is denied. 38 C.F.R. § 3.303 (2020). As to any bilateral foot arthritis, which was diagnosed at the time of a February 2019 examination, the Board finds that the weight of the evidence is against the conclusion that the Veteran's any bilateral foot arthritis had its onset in service. The Veteran's service treatment records contain no complaints or findings of foot problems, with no notation of foot problems until many years following service. The Board does note that the Veteran reported having injured his hand in the 1984 jeep accident, which has been found to be credible; however, there were no findings of left or right foot problems in the years immediately following service. The contemporaneous evidence shows that the Veteran did not report that he had foot problems during service nor were there reports of foot problems for many years following service. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. As to the Veteran's belief that any bilateral foot arthritis is related to his period of service, the question of causation of a complex medical condition, such as the degenerative joint disease, extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. It has not been shown that he has the requisite training to diagnose the cause of his any degenerative joint disease of the feet. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran has been afforded the opportunity to present this type of evidence and has not done so. Because the record does not show continuous symptoms of bilateral foot arthritis since service, degenerative joint disease manifested to a compensable degree within one year of service separation, or a bilateral foot disorder otherwise related to service, direct and presumptive service connection for a bilateral foot disorder may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a bilateral foot disorder, to include degenerative joint disease. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.