Citation Nr: 21005667 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-32 991 DATE: February 2, 2021 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for shin splints, left leg is denied. Entitlement to service connection for shin splints, right leg is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right ankle condition is denied. Entitlement to service connection for a left ankle condition is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected tinnitus and PTSD, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s low back, bilateral knee or bilateral ankle condition was chronic in service, manifest to a compensable degree within one year of separation from service, or is otherwise etiologically related to service, or secondary to service-connected left inguinal hernia. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral shin splint condition which began during active service, or is otherwise related to service, or secondary to service-connected left inguinal hernia. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for shin splints, left leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for shin splints, right leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for a right ankle condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from October 1988 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and September 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the issues on appeal in December 2018 and September 2020. Service Connection 1. Entitlement to service connection for a low back condition is denied. 2. Entitlement to service connection for shin splints, left leg is denied. 3. Entitlement to service connection for shin splints, right leg is denied. 4. Entitlement to service connection for a right knee condition is denied. 5. Entitlement to service connection for a left knee condition is denied. 6. Entitlement to service connection for a right ankle condition is denied. 7. Entitlement to service connection for a left ankle condition is denied. The Veteran seeks service connection for his low back, bilateral knees, bilateral ankles, and bilateral shin splints. Generally, the Veteran contends that his disabilities are due to the rigors of service. See June 2010 VA Form 9; July 2018 hearing. Specifically, he contends that those physical rigors included constant pushing, pulling, and lifting heavy equipment and supplies. He also contends that his disabilities are due to running, walking, and physical training performed on concrete surfaces while wearing combat boots. The Veteran’s DD Form 214 and personnel records show that he worked in a supply squadron. In the December 2018 Remand, the Board indicated that the Veteran’s statements as to events in service are competent and credible. During the July 2018 Board hearing, the Veteran also testified that he has constant pain in his shins, and all of the joints claimed on appeal, since service. Alternatively, the Veteran has asserted that his low back, knees and ankle disabilities are secondary to service-connected inguinal hernia. See October 2018 VA 21-526EZ. In this regard, the Veteran asserts that because of his hernia, but prior to it being detected, he was placing additional strain on other areas of his body including his back, ankles, and knees. See June 2010 VA Form 9. Service connection may be granted for a 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, such as arthritis (degenerative joint disease), 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. §3.310. Turning to the evidence of record, the Veteran has a current diagnosis of minimal degenerative changes of the spine. See October 2020 VA addendum opinion; May 2019 VA treatment records. The Veteran also has a diagnosis of bilateral knee arthritis in July 2016 VA treatment records and mild tricompartmental joint space narrowing in October 2019 VA examination. In April 2019 VA treatment records, the Veteran was shown to have mild tibiotalar joint space narrowing. See also October 2019 VA examination. Lastly, the October 2019 VA examination for ankle conditions and October 2020 VA addendum opinion note a diagnosis of shin splints. Service treatment records are silent for complaints or symptoms related to the low back, knees, ankles, or shins. The records are also silent as to diagnoses related to these disabilities. While the Veteran was seen for numerous complaints during service, to include of insect bites in June 1992 and chest congestion in January 1991, the Veteran was not treated for issues relating to his lumbar spine, knees, ankles, or shins. The post-service treatment records show the Veteran complained of pain related to these disabilities many years after service. In August 2018 VA treatment records, the Veteran complained of multiple joint pain in his knees, ankles and back since the military. However, the Veteran was first noted to complain of crepitus of the knees in December 2001, with imaging in January 2002 showing no diagnostic abnormality. The Veteran also complained of knee pain in April and May 2013, with May 2013 MRI showing right knee degenerative changes. In July 2016 VA treatment records, X-rays showed bilateral knee patellofemoral arthritis. The Veteran’s bilateral ankles were imaged in January 2002 with no diagnostic osseous abnormality and minimal swelling over the lateral malleoli. In May 2013 treatment records, the Veteran complained of bilateral ankle pain. In April 2019 treatment records, bilateral ankle X-rays showed mild tibiotalar joint space narrowing. The Veteran was first noted to complain of back pain in September 2012 VA treatment record. The Veteran’s comprehensive and extensive VA treatment records are silent for complaints related to the Veteran’s shin splints. In these matters, the Veteran was afforded an initial VA examination in October 2019, with an accompanying medical opinion in October 2019. In the examination and opinion, the Veteran reported heavy lifting, marching, and physical rigors during service. The Veteran also reported that he was told that he had a back strain, and experienced pain in his ankles in service. The examiner opined that the Veteran’s conditions were not related to service or secondary to his service-connected inguinal hernia. In doing so, the examiner indicated that there was no documented medical care until 2012. The examiner noted that current spine imaging was normal. Although the examiner noted mild degeneration of the knees and tibiotalar joints, the examiner indicated that these findings are likely age related. The examiner also indicated that the Veteran’s inguinal hernia repair did not have any bearing on his orthopedic conditions, which are normal age-related findings. The June 2020 addendum opinion negatively opined as to the relationship between the Veteran’s bilateral knees, bilateral ankles, bilateral shins, and low back disabilities with service. In doing so, the examiner repeated the prior October 2019 examination report and its supporting rationale. Further, the examiner opined that the Veteran’s conditions are less likely caused or aggravated by service-connected left inguinal hernia as there was a large time span from separation to complaint of the back, knees, shin, and ankle condition. The Board’s September 2020 remand indicated that this the rationale, alone, is not a sufficient basis to render a negative nexus opinion as it is based on a lack of contemporaneous medical records and does not reflect consideration of the Veteran’s assertion. The Board also noted that neither the October 2019 opinion or the June 2020 addendum sufficiently addressed the aggravation prong of secondary service connection. Pursuant to the Board’s remand, an addendum opinion was obtained in October 2020. The examiner noted a diagnosis of minimal degenerative changes of the spine and a diagnosis of shin splints, in addition to the prior diagnoses noted in the October 2019 VA examination. However, the examiner provided a negative etiological opinion as to whether the Veteran’s knees, ankles, shin splints, and back are directly related to service. The examiner reasoned that even with consideration of the Veteran’s claims that each condition began due to the rigors of service, there is no objective evidence of related complaints many years following the Veteran’s separation from service. The examiner also opined that the claimed disabilities are not proximately due to or caused by the Veteran’s service-connected inguinal hernia. The examiner reasoned that there is no clear evidence from review of orthopedic literature to suggest that an injury to one body part would have any significant impact on another, without other factors in play. The conditions claimed by the Veteran are orthopedically intrinsic of themselves. The examiner also offered a negative opinion as to aggravation by service-connected inguinal hernia. The examiner noted the clinical records establish that the Veteran’s conditions are within the projected natural history for each condition and thus, they rule out aggravation by the service-connected inguinal hernia. Upon review of the evidence, service connection for each of these claims is not warranted. While arthritis (i.e. degenerative joint disease) is a chronic disability, the Veteran’s back, knee and ankle disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Rather, the Veteran was not diagnosed until many years after service. In the case of the Veteran’s knees and ankles, there is imaging between the date of each diagnosis and the Veteran’s separation from service. The imaging did not support a diagnosis during the presumptive period or for many years after service. The VA examinations, collectively and individually, establish that the disability did not manifest to a compensable degree within one year of separation from service. Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s back, knees, ankles, and shin splints with an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The evidence also fails to reflect that the claimed disabilities were caused or aggravated by the service-connected hernia. The Board gives probative weight to competent medical evidence, which includes the October 2020 VA examination report. The opinions therein are probative because the examiner has the appropriate training, expertise and knowledge to evaluate the claimed disability. The examiner provided a thorough and cogent rationale for the findings and opinions contained in the report, which included consideration of the Veteran’s reported symptoms both during and after service, and the post-service clinical history. Furthermore, the examiner also reviewed the entire claims file. While the findings are consistent with the treatment record and the clinical impressions therein, there are no competent opinions to the contrary. While the Veteran is competent to report having experienced symptoms of pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed disability. As the disabilities at issue involve internal processes of the musculoskeletal system, they are not observable with the senses. That is to say that degeneration of the joints is imperceptible to the lay observation and require special imaging and reading of that imaging. Thus, the issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the Veteran has not demonstrated the necessary medical expertise, he is not competent to opine on the matter. Thus, the Board accords more probative weight to the medical evidence of record. Finally, the Veteran reported a contemporaneous diagnosis of back strain in service to the October 2019 VA examiner. Generally, lay evidence can be competent and sufficient evidence of a diagnosis, or to establish etiology, if reporting a contemporaneous medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, review of the Veteran’s service treatment records is at odds with the Veteran’s reported diagnosis of lumbar strain. Moreover, there is no competent evidence linking a lumbar strain in service to his current diagnosis. In sum, the evidence weighs against the Veteran’s claim for service connection for his current lumbar spine, bilateral knee, bilateral ankle, and bilateral shin splint disabilities with active military service or his service-connected hernia disability. Accordingly, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected tinnitus and PTSD, is remanded. Pursuant to the Board’s remand, VA obtained an addendum opinion in October 2020 regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not proximately due to service-connected tinnitus or aggravated beyond its natural progression by tinnitus. In rendering a negative etiology opinion on the aggravation prong of secondary service connection, the examiner indicated that the Veteran has not undergone prior sleep study to demonstrate the presence or severity of sleep apnea and consequently, sleep apnea cannot be considered to be aggravated beyond natural progression. The Board notes that while the Veteran has not undergone a laboratory sleep study, he has undergone home sleep studies including a November 2019 study. Thus, the Board is left with two possible impressions. First, the October 2020 addendum is incomplete as it did not consider the home sleep study. Alternatively, there is some distinction between a home sleep study and laboratory sleep study that allows only a laboratory study to be used in demonstrating the presence or severity of sleep apnea. However, the Board notes that the December 2019 VA sleep medicine treatment record that discusses the home study includes testing data and a polysomnography report. The clinician reviewing this record noted a diagnosis of obstructive sleep apnea, presumably based on this study. Given the above, the Board fails to appreciate the distinction between a home or laboratory sleep study sufficient to render a decision based on the October 2020 opinion. As such, clarification would be beneficial and should be sought upon remand. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not proximately due to service-connected tinnitus OR aggravated beyond its natural progression by tinnitus. The examiner must review the claims file, including the November 2019 home sleep study, December 2019 VA treatment record indicating a diagnosis of sleep apnea, and this Remand. The examiner must provide a fully-explained rationale for the opinion and it should reflect consideration of the Veteran’s assertion that when he is lying down, the tinnitus sounds prevent him from achieving rest. If the examiner’s opinion is based on a lack of laboratory sleep studies, the examiner must provide clarification as to why the home sleep study previously conducted is inadequate for these purposes. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.