Citation Nr: 21011538 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-56 080 DATE: March 2, 2021 ORDER Service connection for a right knee disorder, to include medial meniscus tear, pain syndrome and osteoarthritis is denied. Service connection for right lower extremity peripheral neuropathy is denied. Service connection for left lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran’s right knee disorder was not incurred in or caused by service. 2. The Veteran does not have a diagnosis of right lower extremity peripheral neuropathy. 3. The Veteran does not have a diagnosis of left lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a). 2. The criteria to establish entitlement to service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d). 3. The criteria to establish entitlement to service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy Reserve from February 1976 to March 1979. Effective April 2013, the Veteran has a total disability rating based on individual unemployability (“TDIU”) resulting from service-connected disabilities. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2014 rating decision of the Montgomery, Alabama Regional Office (RO). In January 2020, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In April 2020, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Right knee disorder Osteoarthritis, as arthritis, is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, osteoarthritis will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). The Veteran asserts that his right knee disorder was caused by several in-service right knee injuries. The claim will be denied. A June 1976 service treatment record (STR) reflects the Veteran’s report of experiencing right leg pain below his right knee after hitting a wall. The Veteran was diagnosed with a muscle contusion. A subsequent June 1976 STR reflects the Veteran’s report of having undergone a right knee laceration from a physical altercation. The Veteran was diagnosed with multiple abrasions. In December 1976, the Veteran reported right leg pain after having slipped and fallen. He was diagnosed with right knee multiple contusions and abrasions, for which service connection is in effect. An August 1978 service medical board report reflects that the Veteran underwent a right knee laceration after having fallen approximately six decks down a ventilation shaft aboard a ship. The medical board report indicated that the laceration was “found not to communicate with the knee joint.” Radiographic examination of the Veteran’s pelvis, femurs, and tibia and fibula of both knees were within normal limits. The Veteran was placed on a limited duty status because of the primary diagnosis of a left calcaneal fracture and a right ankle sprain and the right leg laceration as discussed here. In February 1979, the Veteran underwent a service department medical board, which found, among other diagnoses, that the Veteran had a healed right ankle sprain and a healed right leg laceration. The medical board found him “fit for full duty.” In the Veteran’s March 1979 pre-separation medical examination report, no lower extremity abnormalities were noted. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). A November 2011 VA treatment record reflects the Veteran’s report of experiencing right knee pain. In a December 2011 VA treatment record, the Veteran denied experiencing right knee pain. In the March 2014 VA examination, the Veteran reported experiencing right knee pain. The VA examiner indicated that the Veteran did not have a right knee diagnosis. A March 2014 VA right knee radiograph revealed normal findings. A November 2015 VA treatment record reflects the Veteran having been provided a right knee brace. In a January 2017 VA treatment record, the Veteran reported experiencing right knee pain that began approximately two months prior. The Veteran was diagnosed with a possible torn medial meniscus. A February 2017 VA right knee radiograph revealed moderate osteoarthritic change in the medial compartment. A July 2017 private treatment record reflects the Veteran’s diagnosis of right knee medial meniscus tear. In his January 2020 Board hearing, the Veteran testified that the August 1978 in-service right knee injury resulted in the Veteran’s “right knee-cap having popped off.” Contrary to the Veteran’s testimony, the STRs are silent as to the Veteran’s right knee-cap and the Veteran is not competent, as a lay-person, to provide a medical opinion as to the cause of his right knee disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the September 2020 VA addendum, the examiner diagnosed the Veteran with right knee osteoarthritis and pain syndrome. The examiner opined that the Veteran’s right knee disorder was not caused by the in-service right knee soft tissue trauma or abrasions because peer reviewed medical literature did not support a nexus between soft tissue injuries and joint diseases and that the Veteran’s right knee disorder, based on his radiographs, presented after 2016. The examiner attributed the Veteran’s right knee disorder to his age. The addendum was adequate and highly probative because the examiner had an accurate and complete understanding of the Veteran’s medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In an October 2020 statement, the Veteran through his representative, asserted that the September 2020 VA addendum was inadequate because the examiner did not discuss the Veteran’s STRs or any records prior to 2014. Contrary to the Veteran’s assertion, the examiner referenced the Veteran’s in-service soft tissue trauma and abrasions noted in the STRs and indicated that the Veteran’s right knee disorder presented after 2016. A preponderance of the evidence is against a finding that the Veteran’s right knee disorder was incurred in or caused by service. The Veteran is not competent to provide a medical opinion as to the cause of his right knee disorder. The September 2020 VA examiner opined that the Veteran’s right knee disorder was not caused by service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. Bilateral lower extremity peripheral neuropathy The Veteran contends that his bilateral lower extremity peripheral neuropathy was caused by having fallen down a ventilation shaft during service. The claim will be denied. An August 1978 service medical board report reflects that the Veteran fell approximately six decks down a ventilation shaft aboard a ship and landed on both feet. In the Veteran’s March 1979 pre-separation medical examination report, no neurological abnormalities were noted. In an October 2010 VA treatment record, the Veteran reported experiencing bilateral lower extremity nerve pain. Nerve conduction studies revealed normal findings; however, it was noted that the Veteran’s lower extremities had small fiber sensory neuropathy which was not assessed by conventional nerve conduction testing. In a May 2011 VA treatment record, the Veteran reported experiencing a vibrating and tingling sensation in both lower extremities. The VA treating physician indicated that nerve conduction velocity testing revealed normal findings; however, the Veteran “could have” small fiber sensory neuropathy because such would not show up in nerve conduction velocity testing. The March 2014 VA examiner diagnosed the Veteran with bilateral lower extremity small fiber idiopathic peripheral neuropathy but indicated that there was insufficient evidence to confirm a diagnosis of a bilateral lower extremity neuropathy disorder. VA treatment records dated March 2014 and August 2014 reflect that the Veteran takes gabapentin for nerve pain. In his January 2020 Board hearing, the Veteran testified to experiencing bilateral lower extremity nerve pain for approximately 40 years. The Veteran is competent to report having experienced observable symptoms; however, he is not competent, as a lay-person, to relate his symptoms to a diagnosis of bilateral lower extremity peripheral neuropathy. Jandreau, supra. In the September 2020 VA addendum, the examiner indicated that there was insufficient evidence to confirm a diagnosis of an acute or chronic bilateral lower extremity neuropathy disorder or any residuals because 2014 electromyography (EMG) testing was normal and although minimal focal muscle trauma was documented, it was acute in origin, clinically insignificant and not related to the Veteran’s reports of nerve pain. The VA examiner’s opinion is adequate and highly probative because he gave a well-reasoned explanation as to why he could not provide a diagnosis without resorting to speculation, including a review of all available evidence. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (holding that a conclusion that no opinion can be offered as to a diagnosis or etiology without resorting to speculation is adequate where it is “clear on the record” that the inability to offer an opinion is “not the first impression of an uninformed examiner, but rather an assessment arrived after all due diligence in seeking relevant medical information that may have bearing on the requested opinion”). The law is well settled that in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). A preponderance of the evidence is against a finding that the Veteran has a diagnosis of bilateral lower extremity peripheral neuropathy. The Veteran is not competent to relate his symptoms of nerve pain to a diagnosis of bilateral lower extremity peripheral neuropathy. The September 2020 VA examiner indicated that there was insufficient evidence to confirm a diagnosis of an acute or chronic bilateral lower extremity neuropathy disorder. Significantly, no competent medical provider has diagnosed the Veteran with bilateral lower extremity peripheral neuropathy. Therefore, the preponderance of the evidence is against the claims, service connection is not warranted and the claims are denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.