Citation Nr: 21005616 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-01 233 DATE: February 2, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right foot disability is denied. FINDINGS OF FACT 1. The probative evidence does not establish that a bilateral knee disability had onset in service or is causally related to service. 2. The probative evidence does not establish that arthritis of the bilateral knees had onset during service or manifested to a compensable degree within one year of separation from active service. 3. The probative evidence does not establish that a left ankle disability had onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. 4. The probative evidence does not establish that a right foot disability had onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to November 1971. This matter arises before the Board of Veterans’ Appeals (Board) from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran attended a videoconference hearing before one of the undersigned Veterans Law Judges (VLJ). The Veteran testified at a second videoconference hearing before one of the undersigned VLJs in May 2019. Transcripts of both hearings are of record. VLJs who participate in hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (a). Moreover, the Court has held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2015). At his May 2019 hearing, the Veteran was advised of his right to another hearing before the third member of the panel pursuant to Arneson. The written transcript showed that the Veteran elected to waive his right to a third hearing before that individual. In June 2020, the Board remanded the issues on appeal, and entitlement to service connection for hearing loss and tinnitus, for further development. The RO later granted service connection for hearing loss and tinnitus in an October 2020 rating decision; those matters are no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection also may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a bilateral knee disability The Veteran contends that he has a bilateral knee disability related to multiple parachute jumps during service. The report of medical history completed by the Veteran in December 1969, prior to entrance into service, shows he reported painful knees. The entrance physical examination report did not note any abnormalities were found on evaluation. The November 1971 service separation examination noted normal lower extremities. A VA examination was conducted in May 1972. The Veteran reported leg and knee symptoms that began in January 1970, with no history of injury. The Veteran reported he would get aching in his knees in bad weather. On examination, the knees had normal full range of motion, with no tenderness, swelling, or deformity. Bilateral knee X-rays were normal. An April 1976 treatment record noted the Veteran complained of pain from the knees to the ankles intermittently since he was in the service in 1970-71. Probable shin splints were noted. A May 1976 VA examination noted possible shin splints; no knee complaints were noted. In July 1976, the Veteran reported pain in both knees, radiating down the legs, since 1971. Examination showed no swelling. There was full range of motion and no crepitation. No instability, tenderness, or orthopedic involvement was present. In October 1976 he was seen with persistent knee pain radiating down his legs. A November 1976 neurology clinic note assessed knee pain, etiology unknown, “except that the patient has noted this for five years and found it secondary to parachute jumping.” A January 1977 followup note described knee pain with no objective findings. On VA examination in May 1977, the Veteran reported that his knees felt numb at times and that his knees felt like “the bone in them is broken.” On examination, there was no swelling of the knees. Knee flexion and extension was normal bilaterally. There was no ligamentous instability. The examiner noted “no abnormal orthopedic findings.” In February 1978 the Veteran was noted to have fallen “the day before yesterday” and hurt his right knee. The right knee was noted to be swollen and contused. An October 1978 VA examination noted no swelling, tenderness, or deformity of the knees. There was full range of motion and no instability of either knee. There was no patellofemoral crepitus. The examiner noted that no orthopedic disease was found. In August 2006 he was seen for treatment with a complaint of knee pain since the 1970s. In January 2007 he again complained of knee pain since the 1970s. The treatment provider noted that the Veteran “was a parachutist in service and may have injured knee in 1970.” In March 2010 the knees were noted as normal on examination. Right knee X-ray was normal; left knee X-ray showed mild degenerative arthritis. A November 2010 MRI of the left knee was suggestive of minimal medial meniscal tear. MRI of the right knee showed slight chondromalacia patella. In July 2012, osteoarthritis of the patellofemoral joints, with mild patellofemoral syndrome was noted. On VA examination in October 2020, the Veteran reported that in 1971 he began to experience bilateral knee pain after his primary parachute failed to completely deploy, and again after another jump when he was dragged a significant distance by the wind. The examiner opined that the Veteran’s current diagnoses of degenerative arthritis and patellofemoral syndrome are less likely than not incurred in or caused by complaints of knee pain that occurred during service to include parachute jumps. The examiner also noted that the arthritis in the Veteran’s knees did not manifest to a compensable degree within one year of separation from that period service in 1971. The examiner provided detailed and cogent rationale for the opinions rendered and included consideration of the Veteran’s relevant clinical history, medical records, and accepted medical research. The Veteran is competent to report knee pain, which is within the realm of his personal experience. The Veteran, however, is not competent to offer an opinion as to the etiology of his claimed disability of the left or right knee. Determining the etiology of the claimed conditions in this case requires medical knowledge or training that the Veteran does not have and is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has reported that he injured his knees in service and that he has continued to have knee pain ever since. However, the service treatment records do not reflect any knee injury. Further, the Veteran’s knees were evaluated on numerous occasions after service and were found to be normal on examination in May 1972, July 1976, January 1977, May 1977, and October 1978. Right knee arthritis was first shown in 2010, and left knee arthritis and bilateral patellofemoral syndrome were noted in 2012. The record does not demonstrate treatment for knee problems again until 2006. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The October 2020 VA examiner’s unfavorable opinion was based on a thorough review of the claims file and provided detailed rationale for the opinion provided. The opinion was well-reasoned, detailed, consistent with the other evidence of record, and included consideration of the relevant history. Accordingly, the opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The opinion is uncontradicted in the record. Based upon the totality of the evidence, the Board finds that the probative evidence of record does not support a nexus between any current disability of the bilateral knees and any incident of the Veteran’s active service. The Board acknowledges that the evidence shows degenerative changes in the right and left knee. To the extent the Veteran has arthritis of the knees, the evidence does not show that the arthritis was manifest to a compensable degree within one year of separation of service; rather, it was first noted by X-rays in 2010 (right knee) and 2012 (left knee). Additionally, the evidence weighs against continuity of symptomatology given the lack of diagnosed right or left knee pathology on VA examinations in 1972, 1977, and 1978. To the extent that the Veteran asserts he experienced chronic knee pain after service, the VA examiner has reviewed the record and even with consideration of the Veteran’s assertion- has determined that the currently diagnosed arthritis did not have onset within one year of discharge and is not of service origin. Thus, service connection is not warranted under the provisions pertaining to presumptive service connection for chronic diseases. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. The preponderance of the evidence is against the claim of service connection for a bilateral knee disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left ankle disability The Veteran contends that he has a left ankle disability that was either incurred in service as a result of parachute jumps or is secondary to his claimed bilateral knee disability. The service treatment records do not include any complaints or findings of a left ankle disability. The November 1971 service separation examination noted normal lower extremities. In April 1976, the Veteran complained of lower leg pains; shin splints were noted. The Veteran did not report a left ankle complaint at that time. VA examination in May 1976 noted possible shin splints; no left ankle complaint was noted. VA examination in May 1977 did not include any left ankle complaints; no abnormal orthopedic findings were noted. In March 2010 the Veteran reported ankle pain. The ankles were noted as normal on examination. Left ankle X-ray showed mild soft tissue swelling; no arthritis was present. On VA examination conducted in April 2010, the left ankle showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Examination of the ankles did not reveal any deformity or ankylosis. The examiner did not diagnose a left ankle disability. In July 2012, the Veteran reported left ankle pain. As noted above, the Veteran’s bilateral knee disability is not service-connected. As there is no legal basis upon which to award service connection for a disability secondary to a disability that is not service-connected, the Veteran’s secondary service connection theory of causation is not possible as a matter of law. See 38 C.F.R. § 3.310; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is also no basis for a finding that the Veteran has a left ankle disability that was incurred in service. No ankle complaints were noted in service or for many years thereafter. The first complaint of left ankle pain noted in the record is in 2010, nearly 40 years after separation from service. The record does not contain a diagnosis of a left ankle disability. There is no competent evidence of record to support a finding that the Veteran has a current left ankle disability that was incurred in or is attributable to his period of service. The preponderance of the evidence is against the claim of service connection for a left ankle disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right foot disability The Veteran contends that he has a right foot disability that was either incurred in service as a result of parachute jumps or is secondary to his claimed bilateral knee disability. The service treatment records in May 1971 reveal complaints of leg soreness and fatigue, and a feeling of heaviness in the feet. Physical examinations were unremarkable. In June 1971, a diagnosis of questionable pes planus was rendered. In September 1971, the Veteran was given an assessment of symptomatic pes planus after a complaint of sore legs. The Veteran was referred to the podiatry clinic for further evaluation. A follow-up visit to the podiatry clinic that same month did not result in a diagnosis of pes planus. Rather, no clinical findings were noted on physical examination. X-rays were reportedly normal. The Veteran reported leg fatigue after prolonged walking. The clinical impression was that he had a possible arterial problem. The initial finding of pes planus was not confirmed. He was referred to the surgical clinic for further evaluation. In November 1971, the surgical clinic assessed the Veteran for the complaints of his feet getting heavy and his legs hurting when walking or running. Examination showed no evidence of a circulatory problem. The November 1971 service separation examination noted normal feet. In April 1976, the Veteran complained of lower leg pains; shin splints were noted. The Veteran did not report a right foot complaint at that time. VA examination in May 1976 noted possible shin splints; no right foot complaint was noted. VA examination in May 1977 did not include any right foot complaints; no abnormal orthopedic findings were noted. In March 2010, metatarsalgia was noted. On VA examination conducted in April 2010, the Veteran reported that a right foot condition had existed for three years. He reported that the condition was not due to injury or trauma. The Veteran reported pain in the right plantar surface with radiation to dorsal area of right foot which occurs constantly. The Veteran reported that he was never hospitalized nor had any surgery for this condition. Right foot X-ray was normal. The examiner diagnosed plantar fasciitis of the right foot. As noted above, the Veteran’s bilateral knee disability is not service-connected. As there is no legal basis upon which to award service connection for a disability that is secondary to a disability that is not service connected, the Veteran’s secondary service connection theory of causation is not possible as a matter of law. See 38 C.F.R. § 3.310; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is also no basis for a finding that the Veteran has a right foot disability that was incurred in or is related to service. Bilateral foot pain and heaviness was reported in service between May and November 1971 after prolonged walking. While an initial assessment indicated the possibility of pes planus or a circulatory problem, these findings were not confirmed by physical examination or diagnostic testing upon further evaluation. Moreover, the service separation examination noted normal feet. The first post-service complaint of right foot pain noted in the record is in 2010, nearly 40 years after separation from service. Plantar fasciitis was diagnosed in April 2010; at that time the Veteran denied a history of foot injury and reported that his right foot condition had been present for only three years, which indicates right foot symptoms had not been recurrent following service discharge. The Veteran has not otherwise reported recurrent right foot symptoms since service including at his most recent Board hearing. During VA examinations in June 1972 and May 1976, he reported pain in the lower legs, but did not report chronic right foot symptoms. VA medical records in the decade after service also do not reflect right foot complaints. There is no competent evidence of record to support a finding that the Veteran has a current right foot disability that was incurred in or is attributable to his period of service. The preponderance of the evidence is against the claim of service connection for a right foot disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals P.M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.