Citation Nr: 21006193 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-17 841 DATE: February 3, 2021 ORDER Entitlement to service connection for left knee condition is denied. Entitlement to service connection for right knee condition is denied. Entitlement to service connection for left ankle condition is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of left knee condition, or functional loss sufficient to qualify as a disability for VA benefits purposes. 2. The Veteran does not have a current diagnosis of right knee condition, or functional loss sufficient to qualify as a disability for VA benefits purposes. 3. The Veteran does not have a current diagnosis of left ankle condition, or functional loss sufficient to qualify as a disability for VA benefits purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for right knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 3. The criteria for entitlement to service connection for left ankle condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from December 1995 to June 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Atlanta, GA. In November 2018, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s remand directed the RO to obtain outstanding VA treatment records from July 2017 to the present. Pertinent records from were associated with the file throughout the appeal period. The Board’s remand also instructed the RO to schedule the Veteran for an examination to determine the nature and etiology of his knee and ankle conditions. The RO requested an examination for each condition in September 2020, but the scheduled exams were canceled at the Veteran’s request in November 2020. As the RO has fulfilled the remand directives, the Board finds there has been substantial compliance with the prior remand. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Veteran’s failure to report for an examination has frustrated the Board’s efforts to obtain additional evidence with which to decide the claims. Generally, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be based on the evidence of record, and as such, the Board will adjudicate the claims accordingly. 38 C.F.R. §§ 3.655(b). 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). 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) caused by, or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for left and right knee conditions The Veteran contends that his right and left knee conditions are due to his active duty military service. He reports pain in the knees after physical training in 2002 and asserts he experiences sleep disturbance, limitation on daily activities, and progressing pain. The Veteran also contends the level of his knee pain was not assessed or considered in his claim. Additionally, the Veteran contends his knee condition is related to his service-connected pes planus. 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 disability of the left or right knee and has not had one at any time during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was provided a VA examination in May 2013. The examiner noted the Veteran had a previous diagnosis of knee strain with an onset of 2002. However, the examiner concluded the condition to be “transient, temporary and self-limiting for episodes (from activities mostly due to repeated aggravation running/other exercises, training requirements) that has resolved medically. There are no further concerns for need of ongoing evaluations & no known complications.” The Veteran was provided an additional VA examination in August 2017. The examiner evaluated the Veteran and determined that, while he previously experienced subjective symptoms of knee pain, he did not have a current diagnosis. The examiner indicated the Veteran reported the onset of symptoms to be 2004 and continues to feel pain with running and walking up stairs. However, the examiner opined any bilateral knee strain has resolved and the Veteran did not report flare ups. The Veteran’s range of motion (ROM) was reported as normal in both knees with no pain, no joint instability, and no loss of strength. The examiner concluded results of the in-person examination were within normal limits and no concurrent treatment for the knees was found in the record to warrant diagnosis of a knee condition. 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.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). However, the Veteran’s 2017 examiner indicated normal range of motion and an absence of pain in both knees, including non-weight bearing. The examiner concluded the Veteran did not exhibit pain, weakness, fatigability or incoordination such that would limit his functional ability after repeated use. Despite consistent treatment from June 2010 to August 2020, VA treatment records do not contain a diagnosis or regular treatment of a knee condition. Periodic assessment reveals normal ROM of the knees throughout that time, as well as full muscle strength of the knees. See CAPRI, 11/25/2019, pg 108-9. Post-service records indicate the Veteran complained of pain in the knee worsened by walking in May 2015 and “pain along the knees” aggravated by running in July 2017. CAPRI, 11/25/2019, pg 80, 161. However, physical therapy notes from January and February 2017 indicate the Veteran demonstrated full ROM and was instructed on proper running technique, lessening his knee pain when running. See pg. 92. There is no further evidence to support a finding the pain the Veteran experienced is such that he has a disability pursuant to the Court’s holding in Saunders. While the Veteran believes he has a current knee disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education 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 of record. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). While the Board gives consideration to the Veteran’s assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claims for service connection of left and right knee condition are denied. 2. Entitlement to service connection for left ankle condition The Veteran contends his left ankle condition is due to his military service. Specifically, he contends his condition is due to or aggravated by his service-connected pes planus. 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 diagnosed ankle disability and has not had one at any time during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The June 2013 VA examiner evaluated the Veteran and determined that, while he received a diagnosis of ankle strain in 2002, he did not have a current left ankle disability. The examination report indicated ROM and strength testing and diagnostic imaging was performed producing normal results with no neurological abnormalities. The examiner noted a lack of confirming evidence in the claims file that describes the severity of the Veteran’s symptoms, and no clinical concerns warranting ongoing evaluations. The examiner concluded the Veteran’s ankle discomfort is less likely than not proximately due to or the result of his pes planus as the condition is believed to be resolved. As with the knees, the record lacks any corroborating medical evidence of a functional impairment due to a left ankle condition. A September 2010 foot examination indicates a bilateral “absence of pain, weakness, fatigability, incoordination & instability. The exam was done three times with no loss of function with 3x repetition.” CAPRI, 11/25/2019, pg. 189. In May 2015, the Veteran reported sharp pain in the ankles that is worsened by walking, but a September 2016 exam reveals no ankle pain and normal ROM. See pgs. 114, 161. Similarly, while a January 2017 note indicates the Veteran experienced medial ankle pain, a separate note two weeks later indicates no limitation of the ankle, full ROM, and no pain. See pgs. 105-107. Overall, post-service VA treatment records indicate normal range of motion in both ankles as earlier as September 2010 and throughout the appeal period with no impairment due to ankle pain. CAPRI, 7/26/2016, pg 59. While the Veteran believes he has a current left ankle condition due to service, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education 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. While the Board gives consideration to the Veteran’s assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection of left ankle condition is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.