Citation Nr: 21077116 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-10 103 DATE: December 28, 2021 ORDER Service connection for a disability manifested by a fatty liver is denied. Service connection for a low back disorder is denied. Service connection for a left shoulder disorder is denied. Service connection for bilateral athlete's foot is denied. Service connection for right hip disorder is denied. Service connection for a left hip disorder is denied. Service connection for right ankle disorder is denied. Service connection for a left ankle disorder is denied. Service connection for left knee arthritis is granted. REMANDED Service connection for a right knee disorder. Service connection for a right shoulder disorder. FINDINGS OF FACT 1. The Veteran served on active duty from October 1975 to June 1979; he has been 100 percent disabled based on unemployability since March 2020 and on a schedular basis since August 2020. 2. Fatty liver is a laboratory test result and not a disability for VA compensation purposes; the Veteran has not been diagnosed with an associated or resulting chronic liver disorder at any point during the appeal period. 3. A low back disorder was not shown in service, degenerative changes of the lumbosacral spine were not shown within one year of service, symptoms were not continuous since service, and the current back disorder is not causally or etiologically related to service or to a service-connected disability. 4. A left shoulder disorder has not been shown. 5. Bilateral athlete's foot was not shown during service and is not causally or etiologically related to service. 6. A right hip disorder, left hip disorder, right ankle disorder, and left ankle disorder have not been shown. 7. Left knee arthritis has been etiologically related to service. CONCLUSIONS OF LAW 1. A disability manifested by fatty liver was not shown in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. A low back disorder was not shown in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). 3. A left shoulder disorder was not incurred in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). 4. Bilateral athlete's foot was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2021). 5. A right hip disorder was not incurred in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). 6. A left hip disorder was not incurred in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). 7. A right ankle disorder was not incurred in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). 8. A left ankle disorder was not incurred in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). 9. Left knee arthritis was incurred in service. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2021 the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Fatty Liver The Veteran claims that service connection is warranted for fatty liver because it is related to alcohol use in service. VA treatment records indicated that he was found to have a history of elevated liver enzymes/high normal laboratory findings from 2012, leading to the diagnosis of non-alcoholic fatty liver disease. Nonetheless, a disability for VA compensation purposes manifested by symptoms of fatty liver is not shown. In this regard, fatty liver is a laboratory finding that is manifest only in laboratory test results and is not a disability for which service connection can be granted. As such, there is no competent evidence of a current disability upon which to predicate a grant of service connection and the first element of service connection the existence of a current disability has not been met. Of note, the evidence does not support that the Veteran has a separately diagnosable condition for which fatty liver/elevated liver enzymes is the primary symptom. As such, service connection for fatty liver is denied on a legal basis. Low Back Disorder In a June 2016 written statement, the Veteran indicated that service connection was warranted for a low back disorder because it was secondary to a service-connected left knee disability. At the hearing he testified that it was due to lifting and other inservice duties. The record reflects that an August 2020 private MRI of the lumbar spine showed mild lumbar spondylosis. [Spondylosis is defined as "degenerative spinal changes due to osteoarthritis." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, page 1754 (32d ed. 2012).] As such, the first element of service connection has been met. Moreover, the Veteran is service-connected for left knee meniscal tear with instability, chondromalacia patella, and Osgood-Schlatter's disease and is in receipt of two separate 10 percent ratings for these left knee disabilities. As such, the second element of secondary service connection has been met. While a January 2016 VA treatment record indicated that the Veteran was seen because he had fallen the day before when his right knee gave out, it was indicated that he injured his right shoulder when he fell. It did not reflect any low back pain or low back injury as a result of the fall. Moreover, it specifically reflected that he fell due to his right knee giving out, not the service-connected left knee. Consequently, the medical evidence does not support the contention that a current low back disorder was caused or aggravated by the service-connected left knee disabilities. While service connection for a right knee disorder is being remanded herein (as discussed below), there is no medical evidence suggesting that the Veteran injured his low back when he fell due to his right knee giving out. Under the circumstances, there is no basis on which to potentially grant service connection for a low back disorder on a secondary basis and the issues are not inextricably intertwined. Regarding service connection for a low back disorder on a direct basis, the Board notes that the service treatment records (STRs) do not reflect any low back complaints, findings or diagnoses, and the May 1979 separation medical examination noted normal evaluation of the spine. Further, the May 1979 Report of Medical History for separation indicated that the Veteran denied recurrent back pain. Therefore, the STRs do not support a medical link between the current low back disorder and any incident during service and nothing in the medical record suggests any link to any incident of service. As such, the medical evidence does not support service connection on a direct basis. As to presumptive service connection, as noted above, no chronic low back disorder was shown in service as the STRs were absent of any related complaints. Also significant is the lack of any related complaints or findings at the time of service separation. The service separation examination report noted normal evaluation of the spine and the Veteran denied back trouble at separation. In addition, the Veteran does not specifically contend that a low back disorder was present in service. Moreover, the first diagnosis of any degenerative changes was from 2020, which is over 40 years after service discharge. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. Specifically, the Veteran was discharged from service in 1979 with a notation of normal clinical evaluation of the lumbosacral spine and he was first noted to have back pain complaints in October 2012. At that time, he reported some right low back pain for a while. He did not mention ongoing symptoms since service at that time or in conjunction with the claim. In sum, he does not contend that he had experienced low back pain since service, and the post service medical evidence does not support any such ongoing symptomatology. Further, a low back disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1979 but symptoms were first noted in the 2000s at the earliest, and spondylosis was not diagnosed until 2020. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. In sum, the medical evidence does not support the claim on any basis. Left Shoulder Disorder The Veteran has claimed entitlement to service connection for a left shoulder disorder. At the hearing he testified that it is due to lifting and other inservice duties. Nonetheless, the record contains no evidence of any current left shoulder complaints, findings and diagnoses. There is no evidence of any left shoulder pain or functional impairment in any of the medical records. While a February 2019 VA treatment record reflected the Veteran's statement that he had a history of left shoulder separation, nothing in the record shows any left shoulder symptoms, findings or diagnosis of left shoulder separation or any other disorder during the period of the claim and the Veteran is not competent to diagnose any left shoulder separation. Similarly, while the Veteran testified that he had a diagnosis of left shoulder arthritis, the medical evidence does not support this contention. As such, the medical evidence does not support the first element of service connection. Athlete's Foot The Veteran claims that service connection is warranted for bilateral athlete's foot because he had it in service and it has been ongoing ever since. To that end, the record reflects a current diagnosis of athlete's foot. Notably a March 2016 VA treatment record noted that the Veteran was prescribed medication for a fungal infection of the soles of the feet. As such, the first element of service connection has been met. A review of the STRs reflects that the Veteran was seen for a body rash (it was specifically noted that the rash covered much of his body, but not his feet) and tinea cruris in service; however, there are no entries reflecting complaints, findings or diagnoses of athlete's foot at any time during service. Moreover, the separation examination is negative for athlete's foot, as is the Report of Medical History for separation. Specifically, evaluation of the lower extremities and skin was normal at service separation and the Report of Medical History reflected the Veteran's denial of foot trouble and skin diseases at service separation. As such, the second element of service connection has not been met. Further, while the Veteran has testified that he has had athlete's foot since service, the medical evidence does not support this contention. In this regard, the post-service medical evidence does not reflect ongoing symptoms of athlete's foot since service. Instead, it reflects a diagnosis of a fungal infection of the soles of the feet for which medication was prescribed (for application on the soles of the feet) in March 2016. Importantly, however, the March 2016 VA treatment record did not reflect ongoing symptoms and an October 2012 VA treatment record specifically noted that he had no skin problems. In addition, VA treatment records reflected findings of onychomycosis, calluses, and hyperkeratosis in 2017. At no time did the Veteran report ongoing athlete's foot since service. While the Veteran is competent to report the presence of athlete's foot or a skin rash on the feet in service and ever since, because the STRs reflected a diagnosis of tinea cruris and body rash (the rash was specifically noted to be on multiple body parts but not the feet) but not athlete's foot, and the post service medical evidence specifically noted no skin complaints in October 2012 on skin examination, the Board finds that athlete's foot was not present in service and ever since. In this regard, statements made to medical personnel in the course of treatment are inherently more credible than statements made later in support of a claim for compensation benefits. As Veteran reported tinea cruris and another body rash during service, it stands to reason that he would have reported athlete's foot in service at well. The fact that he did not weighs against a finding that he had athlete's foot in service and ever since, and the Board finds him less than credible in this regard. In August 2021, a private physician, Dr. M.Q., indicated that there may be a causal relationship between the athlete's foot in service and the current condition; however, Dr. M.Q. did not address the lack of complaints or findings of athlete's foot in the STRs and did not provide a rationale for the stated opinion. Moreover, merely opining that there "may" be a relationship between a current diagnosis and service is not sufficient to grant service connection because it does not meet the "at least as likely as not" standard. As such, the medical evidence shows that athlete's foot was not diagnosed in service or until March 2016, which is over 35 years after service separation, and there is nothing in the medical record noting complaints or findings of athlete's foot in the 35 years since service discharge. Therefore, the medical evidence weighs against the claim. Right and Left Hip Disorders The Veteran has claimed entitlement to service connection for right and left hip disorders. In a June 2016 written statement, he indicated that his left hip disorder was secondary to his left knee disorder. At the hearing he testified that his hip problems were due to lifting and other inservice duties. The record contains no evidence of any current right or left hip complaints, findings or diagnoses. There is also no evidence of any right or left hip pain or functional impairment in any of the medical records. While the Veteran testified that he has diagnoses of right and left hip arthritis, the medical evidence does not support this contention. There are no X-ray studies in the record confirming such diagnoses and he is not competent to render such a diagnosis as a lay person. Without a current disorder, there can be no claim. As such, the medical evidence does not support the first element of service connection. Right and Left Ankle Disorders The Veteran claims that service connection is warranted for right and left ankle disorders. At the hearing, he testified that the ankle disorders were due to lifting and other inservice duties. The record contains no complaints, findings or diagnoses with respect to the right ankle. Specifically, there are no complaints of right ankle pain or functional impairment. While the Veteran testified that he had a diagnosis of right ankle arthritis, nothing in the record supports this contention. There are no X-ray studies in the record confirming any such diagnosis. Moreover, he is not competent to render a diagnosis of arthritis. As such, the first element of service connection has not been met and the medical evidence does not support the claim. With regard to the left ankle, a January 2019 VA treatment record noted complaints of pain in the left ankle and joints of the left foot; however, there is no evidence of any functional impairment or imaging studies showing arthritis or other diagnosis. The remaining VA and private treatment records do not reflect a diagnosis of any left ankle disorder. Although there is evidence of left ankle pain, there is no medical evidence of any abnormal left ankle findings or functional impairment on objective examination. As such, there is no current disability of the left ankle. Without a current disability, there can be no entitlement to compensation. Accordingly, the medical evidence weighs against the claims for service connection for a left ankle disorder. Left Knee Arthritis When service connection was granted for left knee meniscal tear with instability, chondromalacia and Osgood-Schlatter's and two separate 10 percent ratings were assigned (one for instability and one for limitation of extension), the August 2020 rating decision noted that the knee disabilities were claimed as "left knee degenerative arthritis and osteoarthritis." Review of the record reflects that a May 2015 VA treatment record noted a diagnosis of left knee osteoarthritis and a September 2015 VA knee examination report noted a diagnosis of degenerative arthritis of the left knee. While the September 2015 VA examiner opined that the left knee arthritis was not etiologically related to the Osgood-Schlatter's found in service, the July 2020 examiner essentially opined that the current knee disorders were related to service because there was nothing in the record between service and the current diagnoses to account for the current pathology. The July 2020 examiner noted a diagnosis of traumatic arthritis of the left knee. Although there is no direct opinion on point as to whether the current left knee arthritis is related to service generally, under Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities), and in giving the Veteran the benefit of the doubt, the left knee arthritis is considered part of the service-connected left knee disabilities based on the July 2020 VA opinion. Therefore, the appeal is granted. Other Considerations With respect to the claims for service connection for athlete's foot, right and left hip disorders, a low back disorder, right and left ankle disorders, and left shoulder disorder, the Board recognizes that a VA examination was not provided. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. At 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. At 83. However, the duty to provide an examination is not limitless. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The McLendon threshold elements above must be satisfied before VA is obliged to provide an examination or opinion. Initially, the record does not reflect a diagnosis of any right or left hip disorder, any right or left ankle disorder, or any left shoulder disorder. Moreover, aside from the Veteran's lay assertions, the medical evidence does not suggest that the low back disorder may related to be associated with service or the service-connected left knee disabilities. Further, his allegation of ongoing athlete's foot symptoms has been contradicted by the medical evidence of record. As such, his contentions alone are not sufficient to trigger an examination. Thus, VA's duty to provide an examination is not met for the claimed disabilities. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Right Knee. The Veteran claims that service connection is warranted for a right knee disorder because it is secondary to his service-connected left knee disabilities. The September 2015 VA examination report contains an opinion that it is less likely than not that the Veteran's present condition of bilateral knee degenerative arthritis is related to or aggravated by an in-service injury, event or illness; therefore, no opinion regarding secondary service connection is warranted. Subsequently, a July 2020 VA examination report provided a positive nexus opinion regarding the left knee, and service connection for left knee meniscal tear with instability, chondromalacia patella and Osgood-Schlatter's was granted in an August 2020 rating decision. As such, a remand is required in order to obtain an addendum opinion regarding whether it is at least as likely as not that the current right knee arthritis is caused or aggravated by the service-connected left knee disabilities. Right Shoulder. The Veteran claims that service connection is warranted for a right shoulder disorder because it is secondary to service-connected left knee disabilities. Specifically, in a June 2016 written statement, he indicated that he injured his right shoulder while using a pressure hose. He alleges that he fell due to weakness/giving out of his left knee and the fall resulted in a right shoulder injury. A January 2016 VA treatment record stated that the Veteran was seen because he had fallen the day before when right knee gave out. He indicated that when he fell, his right shoulder hit tile floor. He reported current swelling to right shoulder. The record contains an October 2012 VA treatment record noting that a 2009 MRI of the right shoulder revealed grade 2 injury of acromioclavicular (AC) joint with AC joint separation and disruption of the joint capsule, focal interstitial tear of infraspinatus at musculotendinous junction, mild tendinosis of infraspinatus, partial tear of subscapulairs tendon, and altered morphology with high signal in superior labrum slap tear. As the claim for service-connection for a right knee disorder is being remanded, and the medical evidence suggests that the Veteran's right shoulder disorder may have been aggravated due to a fall resulting from right knee weakness, the issue of entitlement to service connection for a right shoulder disorder is inextricably intertwined with the claim for service connection for a right knee disorder being remanded. Therefore, it must be deferred. The matters are REMANDED for the following actions: 1. Direct the claims file, to include a copy of this Remand, to a clinician in order to obtain medical opinions regarding the etiology of the Veteran's right knee degenerative arthritis. The clinician is asked to review the claims file, to include a copy of this remand, and provide an opinion as to the following: whether it is at least as likely as not (50 percent or better probability) that there was an increase in right knee arthritis that was due to or the result of service connected left knee meniscal tear with instability, chondromalacia, degenerative arthritis and Osgood-Schlatter's disease. A complete rationale must be provided for any opinion given. 2. Then, if and only if, the clinician opines that the right knee degenerative arthritis is secondary to the left knee disabilities, the clinician is asked to provide an opinion as to the following: whether it is at least as likely as not (50 percent or better probability) that there was an increase in right shoulder pathology that is due to or the result of service connected right knee degenerative arthritis. A complete rationale must be provided for any opinion given. 3. If the clinician determine that an examination of the Veteran is required in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.