Citation Nr: 21077462 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-46 995 DATE: December 29, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right knee disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's left knee disability began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran currently has or has had a right ankle disability throughout the appellate period. 4. The preponderance of the evidence is against finding that the Veteran's low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1977 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in June 2021, when it was remanded for scheduling of VA examinations. 38 C.F.R. § 3.655 mandates the procedure for deciding claims where a claimant fails to report to a VA examination without good cause. Examples of good cause "include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc." 38 C.F.R. § 3.655 (a). Where a claimant fails to appear for an examination that is scheduled in conjunction with an original compensation claim, "the claim shall be rated based on the evidence of record." 38 C.F.R. § 3.655 (b). Here, the record reflects that VA examinations were scheduled for the Veteran's claimed disabilities on July 26, 2021 and the Veteran failed to appear. The record also reflects that the AOJ sent a notification on September 2, 2021, after her failure to appear, and issued a supplemental statement of the case in October 2021 relating the Veteran's failure to appear for the examinations. As of this date, VA has not received any mail addressed to the Veteran that has been returned as undeliverable. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (there is a presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (discussing the applicability of the presumption of regularity to RO actions). Nor has the VA received any communication from the Veteran indicating that there is good cause for her failure to appear for the July 2021 examinations. Accordingly, the claims for service connection for left knee, right knee, right ankle, and back disabilities will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655 (b). SERVICE CONNECTION 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability The Veteran contends that her left and right knee disabilities are related to service, to include in-service trauma resulting from such strenuous activities as repetitive jumping off a truck and heavy lifting. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left knee strain and bilateral knee osteoarthritis (See November 2020 VA examination), and evidence shows that the Veteran's service did include strenuous activity in service, the preponderance of the evidence weighs against finding that the Veteran's bilateral knee disability began during service or is otherwise related to an in-service injury, event, or disease. Review of the Veteran's service treatment records reflects that the Veteran had no complaints, treatment, or diagnosis of any knee disability in service. In fact, the Veteran's separation clinical examination of May 1989 is reflective of normal lower extremities and the associated report of medical history shows that the Veteran specifically denied a history of "trick" or locked knees. Post-service treatment records show that while the Veteran likely complained of knee symptoms in 2006, a private orthopedic note reflects that knee x-rays on February 13, 2006 were negative for any findings. The first knee diagnosis of record is in August 2011, when the Veteran complained to her private provider of right knee pain. She was diagnosed with a right knee contusion, and x-ray showed mild degenerative changes of the right knee. Furthermore, it was noted that the Veteran banged her knee approximately two weeks prior, when she tripped on a sidewalk. Thereafter, January 2014 VA treatment notes reflect that the Veteran complained of bilateral knee pain and was prescribed prescription medications. She complained of bilateral knee pain with a history of many years, and in September 2014, x-rays showed bilateral mild arthritis of the knees. The Veteran was administered bilateral steroid injection treatments. As such, the Veteran's first post-service right knee diagnosis of record is in August 2011, and her first left knee diagnosis is in January 2014 over 22 and 25 years after separation from service respectively. The Veteran was afforded a VA knee examination in November 2020. She was noted to have a diagnosis of left knee strain and bilateral knee osteoarthritis. The Veteran reported her bilateral knee condition began in February 1989 while marching on cobblestones and jumping from trucks. She reported symptoms during the onset included left knee and ankle pain that flared with marching activity, and that she experienced chronic intermittent left knee pain with use. Furthermore, the Veteran reported receiving orthopedic pain therapy injections as of 2016 for her arthritis, but that with any activity, she experiences pain and inability to bend or lift her left knee. Flare ups of the left knee were reported as being mild to moderate and precipitated by extended walking or standing. Functional loss was noted to include inability to walk for extended periods, and requiring rest. Diagnostic testing including a bilateral knee x-ray in 2014 showed mild arthritis bilaterally. As to the left knee, the examiner opined that the Veteran's left knee disability is less likely than not related to service, including repeated jumping from large trucks and road marching. It was reasoned that while there are current left knee degenerative changes, there is no connection between the in-service claimed injury and the current arthritis. As to the right knee, the examiner opined that the Veteran's right knee disability is less likely than not related to service, including repeated jumping from large trucks and road marching. It was reasoned that while there is a current right knee disability of mild degenerative arthritis, there is no knee injury event in the military that is connected to the current arthritis. While the Veteran is competent to report having experienced a long history of symptoms including bilateral knee pain, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an in-service injury. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the November 2020 VA examiner opined that the Veteran's left and right knee disabilities are not at least as likely as not related to an in-service injury, event, or disease, including strenuous, repetitive activities in service. The rationale was that there was no knee injury in service, and none of the current knee disabilities are related to activities in service. The Board recognizes that the knee claims were remanded in June 2021 because the November 2020 VA opinion was found inadequate for adjudication purposes due to insufficient rationale. Nonetheless, the Veteran did not show for the examination or provide good cause for missing it. The evidence obtained from that examination could have been crucial to the merits of this claim, but the duty to assist is a two-way street, and the Veteran must do her part by helping obtain the evidence necessary to his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran believes her left and right knee disabilities are related to an in-service injury, event, or disease. The Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Additionally, the Board notes that there is no competent or probative medical evidence of record which suggests a positive association between the Veteran's service and her current knee disabilities. Consequently, the Board gives more probative weight to the objective medical evidence, including the November 2020 VA examination, suggestive of a negative etiological association. In summary, for the reasons described above, the preponderance of the evidence is against the Veteran's claims; there is no doubt to be resolved; and service connection for left and right knee disabilities must be denied. 3. Entitlement to service connection for a right ankle disability The Veteran contends right ankle disability is related to service, to include in-service trauma resulting from such strenuous activities as marching on cobblestone roads. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a right ankle disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board is cognizant of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Veteran was afforded a VA ankle examination in April 2015. The Veteran reported her ankles were painful while working as a mechanic in 1979. Physical examination showed normal motion of the right ankle, without pain, tenderness, or crepitus, including after repetitive use. There was full muscle strength, no ankylosis, no instability, and no assistive devices were reported. Diagnostic testing was negative, no functional impact was found, and the examiner assessed the ankle examination to be entirely normal. The Veteran was afforded another VA ankle examination in November 2020. The examiner indicated that the Veteran reported bilateral ankle pain, but no diagnosis other than pain was made for the right ankle. The Veteran described her symptoms began in 1979 after marching on cobblestones, and manifested with pain to the left ankle and knee. She reported being treated in service with rest and occasional ibuprofen. It was further reported that her pain symptoms continued, including daily pain and mild swelling to the left ankle. She indicated having undergone surgery in 2016 for a torn ATF ligament and ankle instability, and that another left ankle surgery was planned for December 2020. The Veteran reported functional loss in the form of chronic pain at all times, increased with activity. Physical examination showed full range of motion for the right ankle, without reported pain, tenderness or crepitus including after repetitive use. There was full muscle strength, no ankylosis, no instability, and no assistive devices were reported for the right ankle. Diagnostic testing was negative, and while functional impact was noted, it was indicated to be a result of left ankle symptomatology. Furthermore, review of VA and private treatment notes of record do not reflect treatment or diagnosis of a right ankle disability. While the Veteran believes she has a current right ankle diagnosis she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In summary, for the reasons described above, the preponderance of the evidence is against the Veteran's claim for service connection of a right ankle disability; there is no doubt to be resolved; and service connection for a right ankle disability must be denied. 4. Entitlement to service connection for a low back disability The Veteran contends that her low back disability is related to service, to include in-service trauma resulting from a motor vehicle accident. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar strain (See November 2020 VA examination), and evidence shows that the Veteran's service did include strenuous activity in service, the preponderance of the evidence weighs against finding that the Veteran's bilateral knee disability began during service or is otherwise related to an in-service injury, event, or disease. Review of the Veteran's service treatment records reflects that the Veteran had complaints of back pain in November 1981 and in April 1985. Specifically, the Veteran reported three days of back pain in April 1985. As such, an in-service injury is conceded. Nonetheless, the Veteran's separation clinical examination of May 1989 is reflective of normal spinal and musculoskeletal examination, and the associated report of medical history shows that the Veteran specifically denied a history of recurrent back pain. Post-service treatment records show that the Veteran's first complaint of back pain is in July 2001, approximately 12 years after separation from service. In this regard, a July 2001 private treatment note indicates that the Veteran complained of low back pain for several days, and reported a history of back problems since a motor vehicle incident in 1982. The diagnosis was low back pain and muscle spasm. An October 2001 private primary care note shows that the Veteran reported a motor vehicle accident the day prior, and complained of back pain. She was diagnosed with a back strain. Thereafter, a March 2010 private x-ray reflected normal findings. The Veteran was afforded a VA low back examination in April 2015. She was noted to have no back diagnosis. The Veteran reported her back condition began in 1982 in Egypt, when a truck stopped suddenly, causing injury and pain to her back. She stated she was diagnosed with a pulled muscle, and was placed back onto duty. The examiner then indicated that the Veteran had a diagnosis of mild degenerative arthritis of the lumbar spine with minimal loss of function. Pertinently, February 1989 while marching on cobblestones and jumping from trucks. She reported symptoms during the onset included left knee and ankle pain that flared with marching activity, and that she experienced chronic intermittent left knee pain with use. Furthermore, the Veteran reported receiving orthopedic pain therapy injections as of 2016 for her arthritis, but that with any activity, she experiences pain and inability to bend or lift her left knee. Flare ups of the left knee were reported as being mild to moderate and precipitated by extended walking or standing. Functional loss was noted to include inability to walk for extended periods, and requiring rest. Diagnostic testing including a bilateral knee x-ray in 2014 showed mild arthritis bilaterally. Pertinently, the examiner opined that the Veteran's back disability is less likely than not related to service, reasoning that while there is evidence of mild degenerative changes in the lumbar spine in April 2014, there is no nexus to the back strain of 1982, given a long interval without medical attention since 1983, as well as working full time until retirement in 2011. The Veteran was afforded another VA examination in November 2020. She was diagnosed with a lumbar strain, and reported her condition began in service, in November 1981. She reported chronic back pain since service. Pertinently, the examiner opined that the Veteran's back disability is less likely than not related to service. It was acknowledged that there was an event in service which caused injury, but reasoned that there was no diagnosis on discharge. Furthermore, the examiner reasoned that the Veteran worked full time until 2011 without medical attention which would demonstrate a connection to a military event. The examiner concluded that the Veteran's condition resolved prior to separation. While the Veteran is competent to report having experienced a long history of symptoms including chronic back pain, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an in-service injury. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Both VA examiners opined that the Veteran's back disability is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that there was significant passage of time between separation from service and treatment, the Veteran worked full time until retirement, and the condition resolved prior to separation. The Board recognizes that the knee claims were remanded in June 2021 because the November 2020 VA opinion was found inadequate for adjudication purposes due to insufficient rationale. Nonetheless, the Veteran did not show for the examination or provide good cause for missing it. The evidence obtained from that examination could have been crucial to the merits of this claim, but the duty to assist is a two-way street, and the Veteran must do her part by helping obtain the evidence necessary to his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran believes her back disability is related to an in-service injury, event, or disease. The Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Additionally, the Board notes that there is no competent or probative medical evidence of record which suggests a positive association between the Veteran's service and her current back disability. Consequently, the Board gives more probative weight to the objective medical evidence, including the April 2015 and November 2020 VA examination, suggestive of a negative etiological association. (CONTINUED ON NEXT PAGE) In summary, for the reasons described above, the preponderance of the evidence is against the Veteran's claims; there is no doubt to be resolved; and service connection for a back disability must be denied. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.