Citation Nr: 21011006 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-38 563 DATE: February 26, 2021 ORDER 1. Entitlement to service connection for a left knee disorder, to include as a chronic qualifying disability under 38 U.S.C. §1117, is denied. 2. Entitlement to service connection for bilateral pes planus, to include as a chronic qualifying disability under 38 U.S.C. § 1117, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that any left knee disability is etiologically related to the Veteran’s active service. 2. The Veteran’s pes planus was noted on entrance into service in July 1999, and is not shown to have permanently increased in severity beyond its natural progression during her active service. CONCLUSIONS OF LAW 1. Service connection for a left knee disorder, to include as a chronic qualifying disability based on service in Southwest Asia during the Persian Gulf Era, is not warranted. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.317. 2. Service connection for bilateral pes planus, to include as a chronic qualifying disability based on service in Southwest Asia during the Persian Gulf Era, is not warranted. 38 U.S.C. §§ 1110, 1117, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from September 1999 to February 2012, to include service in Southwest Asia. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) rating decision. In June 2019, these matters were remanded for development. [The June 2019 Board decision also remanded claims of service connection for neck, bilateral wrist, and right disabilities. A July 2020 rating decision granted service connection for cervical spine, left and right wrist, and right knee disabilities, resolving the appeals in those matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be presumed to be service-connected if they become manifested to a compensable degree of 10 percent within a specified period of time following separation from service (one year for arthritis). Such disease shall be presumed to have been incurred in service, even though there 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For the chronic diseases listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifested “during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War” or to a degree of 10 percent or more before December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a medically unexplained chronic multisymptom illness (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). A “medically unexplained chronic multisymptom illness” has been defined as a “diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii). “Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not considered medically to be unexplained.” Id. Along with the three examples of a medically unexplained chronic multisymptom illness provided by Section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The Veteran’s service records show she was stationed in Southwest Asia from November 2009 to May 2010. As such, the Board finds that the Veteran’s active service qualifies as being stationed in Southwest Asia for the purposes of 38 C.F.R. § 3.317. However, a left knee disorder and pes planus are known, diagnosed, medical conditions. Therefore, they are not considered to be an undiagnosed illness or an indicator of an unexplained multi-symptom illness, and a left knee disorder and pes planus may not be presumed to be related to the Veteran’s service under provisions applicable to undiagnosed illness or unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. Left Knee Disorder The Veteran has asserted that her left knee disorder was incurred in service. The Veteran’s STRs show that on a July 1999 service entrance physical, a September 2009 physical, and on January 2012 service separation physical examinations, her lower extremities were normal on clinical evaluation. While they show that she treated for right knee complaints, they are silent regarding complaints, treatment, or diagnosis for a left knee disorder during service. On July 2013 VA examination, the Veteran’s left knee was normal on clinical evaluation. A left knee disorder was not diagnosed. The first evidence of left knee symptoms is in August 2015, over three years after the Veteran’s separation from active service. She reported having knee pain that began the previous day upon standing from a squatting position. A left knee x-ray was negative. Left knee range of motion studies in April 2018, July 2018, and November 2018 revealed normal left knee motion. On January 2020 VA examination the Veteran reported developing left knee pain during active service. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed left knee strain. The examiner opined that the Veteran’s left knee disorder was less likely than not due to her active service, to include service in Southwest Asia. The examiner explained that her STRs did not show any left knee complaints. The Veteran has not submitted any competent medical opinion suggesting that a left knee disorder might be related to her active service. VA obtained a medical opinion to assist the veteran in substantiating her claim. The provider opined that the Veteran’s left knee disorder was less likely than not due to her active service. The opinion included a detailed explanation of how the examiner reached her conclusion, and noted that a left knee disorder was not diagnosed in service. Notably, the record shows no evidence of a related disease or injury in service. Consideration has been given to the Veteran’s own assertions that her left knee disorder is due to her active service. She is competent to report knee symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, she lacks the medical training or qualification to diagnose an underlying chronic left knee disability or to, by her own opinion, relate such disability to an event, injury, or disease in service (particularly when such is not otherwise shown). As the record does not show a diagnosis of left knee arthritis, service connection for such disability based on a chronic disease presumptive basis, or based on continuity, is not warranted. Finally, as the diagnosed left knee disability (strain) is a known clinical diagnosis (and not an undiagnosed illness, an illness determined by the VA Secretary to warrant a presumption of service connection based on service in Southwest Asia during the Persian Gulf Era, or a medically unexplained chronic multisystem illness, presumptive service connection for the disability under 38 U.S.C. §1117 also is not warranted. The preponderance of the evidence is against this claim. therefore, the appeal in the matter must be denied. Bilateral Pes Planus In June 2019, this matter was remanded the claim for further development. The Veteran asserts that her pes planus was incurred during her active service. The Veteran’s STRs show that on her July 1999 service entrance physical she was noted to have moderate asymptomatic pes planus. While she reported having foot trouble in medical history questionnaires in September 2009, July 2011, and January 2012, her feet were normal on clinical evaluation on a July 2011 physical and on a January 2012 service separation physical. On both the July 2011 and January 2012 physicals, her pes panus was shown to be asymptomatic. Her STRs do not show any treatment for foot complaints (or foot injuries) during her active service. Under governing caselaw (See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004)) “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Considering the fore going, the analysis turns to whether the Veteran’s pre-existing pes planus was aggravated beyond the natural progression of the disease by her active service. The Veteran’s postservice medical records do not show any treatment for foot complaints. On July 2013 VA examination she reported that her pes planus became symptomatic in 2000, has worsened. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to her active service, was clearly and unmistakably not aggravated beyond its natural progression by her active service. The examiner noted asymptomatic pes planus was documented on service entrance, and that there is no medical evidence of complaints to suggest progression [worsening] of her pes planus during her active service. On January 2020 VA examination, the Veteran reported that she developed foot pain in 1999, and reported having foot pain on and off since 1999. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to her active service, was not aggravated beyond its natural progression by her active service. The examiner noted that the Veteran had moderate asymptomatic pes planus at her July 1999 entrance physical and at her January 2012 separation physical [evidencing that there was no worsening]. The examiner observed that on the January 2012 separation physical, it was noted that she used arch supports, but that symptoms of pain were not documented. The examiner explained that arch supports are a customary treatment for pes planus and did not reflect increased severity of the disability. The examiner reiterated that the Veteran’s STRs are silent for complaints of aggravation of her pes planus. Both VA examiners found that the Veteran’s pes planus was not aggravated beyond its natural progression by her active service. Both VA examiners explained that the Veteran’s STRs did not show evidence of worsening (aggravation) of the pes planus. The January 2020 VA examiner explained that the findings on service entrance and separate examinations were identical as to degree of pes planus and absence of symptoms, and specifically indicated (regarding the notation that the Veteran was using arch supports while use of such was not noted on service entrance) that such use is standard treatment/case when there is pes planus and does not reflect a worsening of the disability. Laypersons are competent to testify as to their observations of symptoms (including such as foot pain, which was not documented in service, but has been reported since). However, whether such symptoms reflect a chronic increase in pathology of or impairment due to the underlying disability (here pes planus) is a complex medical matter requiring knowledge of the significance of the complaints, and physical findings (including consideration of impact on functioning. See Jandreau, 492 F.3d 1372. The Veteran has not submitted any medical evidence supporting that her pes planus increased in severity during/was aggravated by her active service. On her separation physical her pes planus was noted to be asymptomatic, and her feet were normal on clinical evaluation. Her own opinion that the disability was aggravated by service has no probative value. The VA examiners’ opinions that the Veteran’s pes planus was not aggravated by service, particularly that of January 2020 examiner, reflect familiarity with the entire record, and include rationale that cites to supporting clinical data and medical principles and addresses the specific question raised by the facts in this matter, i.e., whether the notation of use of arch supports at separation when such was noted on service entrance suggests a worsening of the disability. The examiner indicated it does not, and explained why not. The Board finds the examiners’ opinion probative evidence in the matter, and in the absence of equally or more probative evidence to the contrary, persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.