Citation Nr: 21006917 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-14 607 DATE: February 5, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. The evidence weighs against finding that the Veteran’s right knee disability is etiologically related to service. 2. The evidence weighs against finding that the Veteran’s left knee disability is etiologically related to service. 3. The Veteran’s bilateral pes planus existed prior to service and was clearly and unmistakably not aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303; 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1985 until April 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge in December 2017. A transcript of the hearing has been associated with the record. In April 2018 and October 2019, the Board remanded the issues to obtain VA examinations with adequate etiological opinions. 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). Under 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service is not in fact shown to be chronic or the diagnosis of chronicity may be legitimately questioned. The provisions of 38 C.F.R. § 3.303(b) apply only to the specific chronic diseases listed in 38 U.S.C. §§ 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. The Veteran contends that his right and left knee disabilities are related to service. September 1989 service treatment record noted bilateral knee pain and undocumented patellofemoral syndrome (PFS). August 2009 VA examination showed that right knee x-ray findings are within normal limits. The left knee x-ray findings were also within normal limits. However, the examination showed diagnoses of bilateral PFS and chondromalacia (cartilage conditions) and reported knee pain since service. Although a February 2019 VA examination showed a diagnosis of degenerative arthritis of the knees, the examiner opined that due to the gap of treatment following separation from service for patellofemoral syndrome and chondromalacia, the degenerative arthritis of the knees was not related to service. However, the report did not address the Veteran’s August 2009 diagnoses of bilateral PFS and chondromalacia. As such, a new examination was requested to reconcile the diagnoses of record and provide adequate etiological opinions. The Veteran underwent a VA examination in December 2019, wherein a 2014 diagnosis of degenerative arthritis was noted. The Veteran reported onset in 1987 and stated that his knees started hurting and swelling, especially when running and taking the stairs. He further reported that he went to sick hall and was treated with motrin and recovered and returned to work. Since then, he reported, he has had worsening bilateral knee pain over time, his right knee started buckling about 10 years ago, he had swelling in anterior bilateral knees. He stated that he started physical therapy in June 2019 with some improvement. The examiner opined that the Veteran’s bilateral knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Current symptoms include deep pain in the anterior knee along the knee cap. Treatment includes daily medication for multiple ailments including bilateral knee pain. The examiner stated that during service, the Veteran’s left and right knee conditions were acute only, in 1989. The examiner acknowledged the August 2009 diagnosis of PFS noted within the VA examination. However, the examiner stated that there was no objective evidence found in the Veteran’s claims file for patellofemoral or chondromalacia, objective findings do not support such diagnoses, and a diagnosis was unwarranted. The examiner pointed to a November 2014 X-ray showing normal right knee and mild patellofemoral DJD and stated that according to the objective evidence, the 2014 diagnosis of DJD of the right knee was 23 years after discharge from the Navy. The examiner stated that objective exam findings of degenerative joint disease are most likely due to normal wear and tear for the Veteran’s age. Additionally, the examiner stated that no continuity of the same symptomatology was found within that time period. The examiner stated that there is no evidence of chronicity of care and a nexus has not been established. Therefore, the examiner stated, it is less likely that the degenerative arthritis began during active service or manifested within one year after discharge from service and a nexus has not been established. The Board concludes that the evidence weighs against the claims for service connection for left and right knee disabilities. The medical opinion considers and addresses the Veteran’s August 2009 diagnosis but finds that such a diagnosis was unwarranted due to lack of objective evidence. The opinion then concludes that the Veteran’s current degenerative arthritis, which was diagnosed in 2014, is less likely than not related to service due to the lapse in time (23 years post-service). The examiner further concluded that objective findings of DJD are more likely due to normal wear and tear. Based on the above, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran bilateral knee disability began during service or is otherwise related to an in-service injury, event, or disease. Although, as the Veteran contends, there is evidence of bilateral knee conditions in 1989, it has not been shown to be related to current degenerative arthritis. While the Veteran is competent to report having experienced in-service knee problems and symptoms since service, he is not competent to determine that these symptoms were manifestations of his current knee disabilities or that current symptoms are attributable to service. The issue of establishing nexus based on etiology is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the December 2019 VA examiner opined that the Veteran’s bilateral knee disability is not at least as likely as not related to an in-service injury, event, or disease. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the December 2019 VA examiner’s opinion, as it is supported by rationale discussing the medical evidence. As the preponderance of the evidence weighs against the Veteran’s claim, service connection for a bilateral knee disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for bilateral pes planus. The Veteran contends that his bilateral pes planus was made worse by his service. See August 2019 Statement in Support of Claim. Upon enlistment in 1985, the Veteran was noted to have pes planus with denial of symptoms. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 (a). A permanent increase in severity is required to establish “aggravation” of a preexisting disability for the purposes of the presumption of aggravation under 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). December 2019 Disability Benefits Questionnaire (DBQ) showed a 1985 diagnosis of bilateral pes planus and a 2009 diagnosis of bilateral hallux valgus. The Veteran reported that he started having bilateral foot pain in the arch area and ball of his feet and heel after having to wear boots to train during service. After boot camp, the Veteran states, he was able to purchase better shoes which improved pain. The Veteran reported that he worked as a corpsman in 1989, wherein he stood on his feet for long periods of time and was given custom orthotics, which improved symptoms. After wearing out the orthotics, he stated, he started having feet pain again and was given generic orthotics in August 2018. Current symptoms include bilateral bottom foot pain in the arch area and ball of foot, and pebble in ball of foot that started 6 months prior to examination. He is treated with orthotics and daily medication for feet and other ailments The December 2019 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that during service, the pes planus condition was acute only and existed prior to service. The examiner further stated that there is no evidence of chronicity of care and a nexus has not been established. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that the evidence shows that the Veteran’s pes planus did clearly and unmistakably preexist service but was not aggravated by service. Further, the examiner stated, it is not clear if the pes planus was congenital or incidentally found on entrance exam, as the Veteran himself stated he was not aware of this condition until his enlistment. The examiner reasoned that there is no objective evidence of treatment or foot complaints outside of compensation and pension examinations, and there were no podiatrist or PCP records showing evidence of bilateral pes planus complaints. Additionally, the examiner stated that there is no evidence of in-service injuries, events or disease. The examiner stated that during service, the pes planus condition was acute only, no further treatment was issued during Navy active duty dates, and there is no evidence of chronicity of care. The examiner concluded that a nexus has not been established and there was no evidence of permanent aggravation beyond normal progression identified. The Board concludes that the evidence weighs against the claims for service connection for bilateral pes planus. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, and the evidence shows, that the pes planus condition existed prior to service. only. In sum, the evidence shows that the disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. The probative evidence shows that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Accordingly, the claim for service connection for bilateral pes planus must be denied. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND 4. Entitlement to service connection for a back disability. The Veteran contends that his back disability is related to service. The Veteran reported that his back went out constantly while he worked as a hospital EMT in the Navy. He stated that he sought medical treatment on more than one occasion and that after being released from the Navy, he was treated by the VA in 1998 and diagnosed with muscle strain. Current symptoms include pain on left side, which he treats with daily mediation for low back pain. See examination. March 1990 service treatment records (STRs) show complaints and treatment for lower back pain. February 2003 VA treatment records show treatment for low back pain. Upon remand, the Veteran underwent a VA examination in December 2019, which showed a January 2019 diagnosis of degenerative arthritis of the spine and a December 2019 diagnosis of lumbosacral strain. Regarding flare-ups, the Veteran reported that he started feeling pain in his left side lower back after lifting and moving a toolbox two weeks prior to examination. He reported that flare-ups occur once every 2 to 3 years lasting for 1 to 2 days. The examiner stated that an acute lower back left side strain is an incidental finding on the day of exam from an injury that, according to the Veteran, occurred two weeks prior. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is no objective evidence that the Veteran incurred or was caused low back pain during active duty naval service. The examiner stated that the Veteran was diagnosed with degenerative joint disease and muscle strain in 2019. Further, the examiner stated that osteoarthritis (OA) is the most common form of arthritis and a significant cause of pain and disability in older adults. Among the risk factors for OA, the examiner stated, age is the most prominent. The examiner opined that the Veteran’s lumbar degenerative joint disease is not likely to be related to an in-service injury, event, or disease as there is no objective evidence of the sorts. Further, the examiner opined that the nature and etiology of the diagnosed back disability is degenerative joint disease and muscle strain, and there is no other evidence of a chronic condition and a nexus has not been established. The Board regrets the further delay but finds the opinion inadequate because it is based, in part, on inaccurate facts. The examiner states that there is a lack of objective evidence that the Veteran was caused low back pain during active duty naval service. However, the Veteran’s STRs show in-service treatment for low back pain in March 1990. The opinion is further inadequate in that it discusses only the incident immediately preceding examination and does not appear to consider the February 2003 VA treatment record showing treatment for low back pain. Accordingly, a new opinion is needed to address whether the Veteran’s back condition, as noted in 2003 and 2018/2019, is caused by or incurred in service, to include documented reports of in-service back pain. 5. Entitlement to service connection for a skin disability. The Veteran contends that his skin disability is related to service. The Veteran reported eczema in the bilateral inner aspect of his pointer and middle finger. He reported that while in technical school, he worked with chemicals and started noticing a bumpy itchy rash on the bilateral inner aspect of his pointer and ring finger. He stated that he saw a dermatologist at that time, who prescribed him corticosteroids that improved over time. The Veteran stated that once every three years, he gets a breakout that starts with a small bump on the finger and clears up with over the counter cortisone cream. He stated that he is unsure if the bump is from eczema or a scab and that he had not seen a dermatologist since the 1990’s. He reported that his eczema has was last active in 2018 and resolved with medication. See August 2019 Statement in Support of Claim and December 2019 VA examination. September 1988 service treatment record notes eczema on the hands that was improving. The skin disability of dyshydrosis eczema was noted during his 1991 discharge examination. June 2009 and February 2013 VA treatment record note eczema as active problems during the appellate period. Upon examination in December 2019, a VA examiner indicated that there were no visible characteristic lesions on the skin due to eczema or any other skin condition. The examiner remarked that there was no visible eczema noted on the day of exam and no diagnosis was warranted. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that symptoms are subjective only and the objective exam is normal. The examiner concluded that there is no objective evidence of a chronic condition eczema and a nexus has not been established. The Board regrets the further delay but finds that this opinion does not provide a detailed rationale addressing the June 2009 and February 2013 notations of eczema within the Veteran’s treatment records. The examiner appears to base the opinion entirely on the lack of diagnosis noted upon current examination. Upon remand, the examiner should explain the etiology of eczema as it has been noted within the appellate period. Accordingly, the matters are REMANDED for the following action: 1. Update VA treatment records. 2. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his back disability. The examiner should review the entire record then opine: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s back disability is related to service? The examiner should address the March 1990 STRs and February 2003 VA treatment records showing treatment for low back pain. A complete rationale for all opinions should be provided. 3. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his skin disability. The examiner should review the entire record then opine: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin disability is related to service? The examiner should address the June 2009 and February 2013 notations of eczema within the Veteran’s treatment records. A detailed rationale should be provided to support any conclusion reached. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.