Citation Nr: A21020082 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190610-7477 DATE: December 16, 2021 ORDER Service connection for right knee degenerative arthritis is denied. Service connection for right hip disability is denied. Service connection for right ankle disability is denied. FINDINGS OF FACT 1. The Veteran's right knee degenerative arthritis was not shown in service, was not manifested within a year from service or for many years thereafter; and has not been found to be etiologically related to service. 2. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of a right hip disability. 3. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of a right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for right hip disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1985 to March 1989. The rating decision on appeal was issued in March 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In April 2019, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the March 2019 rating decision. In May 2019, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision. Therefore, the Board may only consider the evidence of record at the time of the initial rating decision. The appellant initially requested the hearing option in the June 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). In December 2020, the appellant withdrew the hearing request; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 1. Entitlement to service connection for right knee, degenerative arthritis. The Veteran filed a claim for right knee disability in December 2018 which was originally denied by rating action of March 2019 as the condition neither occurred in nor was caused by service. The denial was continued on higher level review. See HLR rating decision of May 2019 The Veteran contends that his claimed right knee was caused by a "tumble" during a forced march in 1986 or 1987 or otherwise etiologically related to his service. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a right knee disability. On his separation Report of Medical History, the Veteran reported "trick" or locked knee, but the medical examiner at the time indicated "trick" knee in 1986 resolved without sequela. See Report of Medical History dated February 1989. On his separation physical evaluation, he had normal findings of the lower extremities. See Report of Medical Examination dated February 1989. The Veteran was afforded a VA knee examination in March 2019 where a diagnosis of right knee arthritis, degenerative was confirmed by X-rays taken at the time of examination. The Veteran reported being treated in the private sector for the past two years and treated with a knee brace, injections, NSAIDs, no surgery or physical therapy. He reported the right knee has been bothersome "for the past 15 years". After personal examination of the Veteran, the VA examiner opined that the claimed right knee was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In the rationale, the VA examiner stated the Veteran's "separation exam documents normal lower extremities examination findings and is silent for a chronic right knee condition, diagnosis, or treatment by the examiner. This exam documents the veteran reported 'Trick' or locked knee and the examiner documented the veteran had 'trick' knee in 1986 that resolved without sequela." The VA examiner added the Veteran's X-ray findings on current clinical exam were consistent with moderate degenerative arthritis. The VA examiner concluded that "after review of all records provided for review, the veteran's claimed right knee, diagnosed as degenerative arthritis of the right knee approximately 30 years after military service, is less likely than not (less than 50 percent probability) incurred in or caused by the knee problems during service that resolved without residuals." See VA examination and medical opinion dated March 2019. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for right knee disability. Initially, the Board addresses the arguments raised by the Veteran through his representative regarding the competency of the March 2019 VA examiner. Specifically, the Veteran's representative argues the VA examiner is a "family nurse practitioner" and "[t]here is nothing in the record whatsoever demonstrating that she possesses the expertise in the medical field of orthopedics, which necessarily involved the anatomical system for the condition the Veteran believes should be service connected." See December 2020 Correspondence at 3. The Veteran's representative further argues that the "RO failed to" consider and discuss the VA examiner's competence. Id. at 2. The Veteran's representative also seeks remedy from the Board to obtain the VA examiner's "curriculum vitae and any other qualifications regarding her expertise in the medical field of orthopedics as it is mandated by VA's duty to assist." Id. at 3. The Board notes that the question of "whether an examiner is competent and whether she has rendered an adequate exam are two separate inquiries." See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This requirement is rebutted when the Veteran raises the issue of competency. See Francway, supra. After the Veteran challenges the competency of a medical examiner, "the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Id. at 1381. To the extent that the Veteran's representative has expressly challenged the ability of a "family nurse practitioner" to provide findings regarding the nature and etiology of the Veteran's right knee disability, the Board observes there is no indication that any greater level of specialized training is required for this type of examination. As a general matter, there is no requirement that a medical examination be conducted by a physician. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)). The Court has already rejected the contention that a nurse practitioner is not competent to either conduct a VA examination or to render a competent medical opinion. See Cox, 20 Vet. App. at 569. Specifically, the Court held that "a nurse practitioner, having completed medical education and training, fits squarely into the requirement of 38 C.F.R. § 3.159 (a)(1) as one competent to provide diagnoses, statements, or opinions." Id. Unlike a lay person, a nurse practitioner has a master's degree with a minimum of six years of specialized medical education and training. Thus, the Board consequently finds that the March 2019 VA examiner was competent to conduct the VA examinations relevant to the Veteran's right knee, ankle, hip claims, although she may be listed as a "family nurse practitioner." Next, as to the Veteran's argument that the "RO failed to" consider and discuss the VA examiner's competence, the Board finds there is no requirement that VA present evidence of a medical professional's qualifications as a "precondition" for the AOJ's reliance upon that examiner's opinion. Furthermore, under the AMA, the Board finds there was no pre-duty to assist error on the part of the AOJ where a challenge was raised after the date of the AOJ decision on appeal, such as the case here. The AOJ is not expected to anticipate a potential future challenge of competency of a VA examiner where caselaw has already rejected the contention that certain clinicians, to include nurse practitioners and physician's assistants, are not competent to provide diagnoses, statements, or opinions. Cox, 20 Vet. App. at 569. To that end, the Board assigns significant probative value to the March 2019 VA medical opinion. The VA medical opinion is based on a thorough and comprehensive review of the Veteran's claims file, consideration of lay evidence of record, and provide well-grounded rationale to support the examiner's conclusion. The VA examiner in particular provides substantial reasoning and explanation as to why the Veteran's current right knee degenerative arthritis is not etiologically related to the right knee problem during service which resolved without residuals. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Accordingly, the Board finds great probative value in the March 2019 VA medical opinion. Further, consideration has been given to the Veteran's assertions that his right knee is related to service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between the current disability and service, the Board finds lay witnesses are not competent as this requires medical expertise, such as the ability to interpret diagnostic testing. Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Veteran's statements do not constitute competent medical evidence, and the Board assigns more weight to the March 2019 VA examiner's opinion. Furthermore, the Veteran's assertions of ongoing knee pain since service, while competent, are not fully credible and outweighed by other probative evidence of record. Post-service treatment records do not document any residuals reported from his "resolved" right knee treated in service. The record also shows an extended period after service without any manifestations of the claimed disability. Notably, even by the Veteran's own admission during his March 2019 VA examination, his right knee has been bothersome "for the past 15 years", which would be since 2004, approximately 15 years after separation from active duty. Additionally, the earliest objective medical evidence of degenerative arthritis of the right knee was revealed in X-rays of March 2019, approximately 30 years after discharge from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Lastly, the Veteran's right knee degenerative arthritis manifested well after one year after the Veteran separated from active service. Although arthritis may be considered a chronic disease for VA purposes, degenerative arthritis was not clinically shown to a compensable degree within one year following the Veteran's discharge from service. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that degenerative arthritis manifested to a compensable degree within one year following the Veteran's discharge from service. Id. As discussed in detail above, medical records following service do not reflect any problems related to arthritis or affecting his bones or joints. As such, service connection on a presumptive basis is not warranted under 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for right knee degenerative arthritis. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for right hip disability (claimed as secondary to right knee). 3. Entitlement to service connection for right ankle disability (claimed as secondary to right knee). In his December 2018 application, the Veteran claimed right hip secondary to right knee and right ankle secondary to right knee. The claims were denied in rating decisions of March and May 2019. As to the asserted theory of entitlement, the Board notes that secondary service connection is not applicable as service connection has not yet been established for the claimed right knee disability. Otherwise, the Veteran has not advanced any specific contention other than his general application for service connection. Upon review of the evidence, the Board finds the weight of the evidence is against the finding of a present disability for which entitlement for service connection can be established. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a right hip or right ankle disability. Likewise, post-service medical records are absent for any findings or ongoing treatment for the claimed disabilities. The Veteran was afforded a VA hip examination in March 2019 where the VA examiner found no current diagnosis of the claimed hip condition. The Veteran reported his "right hip started to be bothersome about 2 years ago". On clinical evaluation, he had normal range of motion with "no pain on exam". The examiner commented "subjective right hip pain today with no objective medical, clinical, or diagnostic evidence to support a chronic condition that would lead to a chronic disability at this time." The examiner added that "veteran with normal clinical exam findings and normal radiographic findings. No chronic right hip condition or diagnosis found at this time." See VA hip examination dated March 2019. Similar opinion was rendered by the same VA examiner for the March 2019 VA ankle examination. The examiner concluded the Veteran does not have a current diagnosis associated with the claimed ankle condition. The Veteran demonstrated normal range of motion with "no pain on exam". The examiner commented that on current exam, the "veteran denied any right ankle pain symptoms or limitations, had normal clinical exam findings, and normal radiographic findings. No chronic right ankle condition or diagnosis found at this time." The Veteran has not submitted any evidence to the contrary. Based on a review of the record, the evidence does not indicate a current diagnosis of the claimed right hip or right ankle disability at any point during the course of this appeal. The Board is cognizant of a recent Federal Court decision of Saunders v. Wilkie, holding that "pain alone without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d 1356 (Fed. Cir. 2018). However, the Federal Circuit clarified that to establish a disability, "the veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity." Id. at 1368. To that end, although the record shows the Veteran's reports of right hip pain, his described symptoms do not reach the level of causing functional impairment in earning capacity as contemplated in Saunders. In fact, the record shows the Veteran is currently employed and works for the Department of Corrections as a full-time correctional officer, a job he has maintained for over 24 years. Furthermore, the Board finds significantly probative the March 2019 VA examiner's findings indicating no diagnosis or functional limitation related to the right hip or right ankle. The Board has also considered the Veteran's assertion of a present disability. However, the diagnosis of a disability or to attribute pain to an underlying diagnosis is a complex medical question that requires medical expertise that the Veteran is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his comments are afforded limited probative value and are outweighed by the competent medical evidence of record, including the March 2019 VA examinations. (Continued on the next page) The Board therefore finds that service connection for right hip and right knee disability is not warranted as there is no current diagnosis of a disability or objective medical evidence indicating the Veteran experiences hip pain that causes a functional impairment of his earning capacity owing to his military service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for right hip and right ankle disabilities. Accordingly, the claims must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.