Citation Nr: A21020367 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200521-86772 DATE: December 21, 2021 ORDER Entitlement to service connection for a lower back condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a left knee condition is denied. REMANDED Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for flatfeet/right foot condition is remanded. FINDINGS OF FACT 1. The Veteran's lower back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's left knee condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's right knee condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from April 1987 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) from an April 2020 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Service Connection 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a lower back condition At the outset, the Board notes the favorable findings made by the RO in the April 2020 RD, namely that the Veteran's service treatment records (STRs) indicate that he underwent treatment during service for a back strain in 1988, and that the May 2011 VA examination confirmed a diagnosis of facet degenerative joint disease of the lumbar spine. As the Board is bound by these favorable findings, the first two Shedden elements of service connection, specifically an in-service incurrence and a current disability, are considered met. Per the Veteran's lay testimony, he injured his back during service while installing devices called "tide gauges" aboard the USNS Chauvenet in 1987. See December 2012 Notice of Disagreement. The Veteran added that he reinjured his back in 1988 in dragging a large electrical transformer up two decks in order to discard it over the side of the ship. Id; see also Buddy Statements of record; May 2021 Appellate Brief. The Board notes that there are no medical opinions of record linking the Veteran's diagnosis of facet degenerative joint disease of the lumbar spine to the aforesaid events. Rather, the May 2011 VA examiner opined that the Veteran's in-service lumbar strain was an isolated event that seemingly resolved on its own as evidenced by his post-service medical records and a normal separation examination; adding that the Veteran's first complaints were noted several years following his separation from service and are consistent with aging and occupational stressors over the years. The Board finds the May 2011 VA examination to be highly probative as it is sound and thorough with a sufficiently clear and well-reasoned rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). While the Veteran believes his claimed for lower back condition is related to his in-service lumbar strain, he is not competent to provide a nexus opinion regarding this issue as it is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training 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). Consequently, the Board assigns the most probative weight to the May 2011 VA medical opinion. As such, the Veteran's claim for service connection must be denied. While the Board is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue, the doctrine is not applicable in this case relative to all theories of entitlement because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for a right knee condition 3. Entitlement to service connection for a left knee condition At the outset, the Board notes the favorable findings made by the RO in the April 2020 RD, namely that the Veteran's service treatment records (STRs) indicate that he underwent treatment for a left knee strain in January 1989, and a right knee injury in April 1991, while the medical evidence of record since service confirms diagnoses of left knee traumatic arthritis in 2006 and arthralgia in both knees in 2013. As the Board is bound by these favorable findings, the first two Shedden elements of service connection, specifically an in-service incurrence and current disabilities, are considered met. The Veteran contends that he injured his left knee in an accidental fall after stepping in a hole while on duty at NAS, Sicily. See December 2012 NOD. Regarding his right knee, the Veteran contends that suffered an injury while playing in a command-sponsored softball game. Relative to both, the Veteran alleges that he has suffered pain in his knees ever since. Id. The Board notes that there are no medical opinions of record linking his currently diagnosed knee conditions to the aforesaid events. Rather, the May 2011 VA medical examiner opined that the Veteran's left knee is not related to the isolated event in service as a review of the 2007 treatment record did not reveal interim evidence that shows he had ongoing problems with the left knee during that period of time; also noting that the in-service injury likely resolved as no issues were noted on the Veteran's separation examination. Relative to the right knee, the VA examiner opined that while the Veteran may have twisted his knee during service, the Magnetic Resonance Imaging at that time was normal, and said imaging is strong evidence against any problem with the knee from the initial injury, thereby ruling out any chronic problem with the knee at the time of exit from the military. Like with the Veteran's back issues, the VA examiner attributed his knee diagnoses as being consistent with aging, as well as occupational stressors over the years. The Board finds the May 2011 VA examination to be highly probative as it is sound and thorough with a sufficiently clear and well-reasoned rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). While the Veteran believes his claimed for knee conditions are related to his in-service falls, he is not competent to provide a nexus opinion regarding this issue as it is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training 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). Consequently, the Board assigns the most probative weight to the May 2011 VA medical opinion. As such, the Veteran's claim for service connection must be denied. While the Board is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue, the doctrine is not applicable in this case relative to all theories of entitlement because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 4. Entitlement to service connection for a left foot condition 5. Entitlement to service connection for flatfeet/right foot condition Upon review of the May 2011 VA examiner's medical opinion, the Board finds that it does not adhere to the correct legal standard in considering whether the Veteran's preexisting bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by service. To point, the VA examiner indicated that it is rather unclear why the Veteran first noticed his left bunion during service, but that it is most likely due to his congenital pes planus. As such, the Board does not find that the VA examiner applied the correct legal standard in addressing whether it is undebatable that the Veteran's claimed for foot conditions were not aggravated beyond their natural progression by service (relative to the foot trouble/left bunion he endured during service). The Board finds the RO committed a pre-decisional duty to assist by relying on an inadequate examination warranting a remand to acquire an addendum medical opinion addressing the same. The matters are REMANDED for the following action: Obtain an addendum medical opinion for the Veteran's claimed for foot conditions. Upon review of the record for the period on appeal, to include this remand, opine as to the following: Is there clear and unmistakable evidence of record during the period on appeal indicating that the Veteran's claimed for foot conditions were not aggravated beyond their natural progression during or by his active-duty service? Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.