Citation Nr: 21011540 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-56 863 DATE: March 2, 2021 ORDER Service connection for a right foot disability is denied. Service connection for a left foot disability is denied. Service connection for the residuals of a left eye injury is denied. Service connection for a cervical spine disorder, claimed as a neck condition, is denied. Service connection for asthma is denied. Service connection for the residuals of a left wrist and hand fracture is denied Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that any current bilateral foot disability began during active service or is otherwise related to an in-service event, injury or disease, or that pre-existing pes planus was aggravated during service. 2. The preponderance of the evidence of record is against finding that the Veteran has any residual disability resulting from a left eye injury during service. 3. The preponderance of the evidence is against finding that a cervical spine disorder began during active service or is otherwise related to an in-service event, injury or disease. 4. The preponderance of the evidence is against finding that asthma began during active service or is otherwise related to an in-service event, injury or disease. 5. The preponderance of the evidence of record is against finding that the Veteran has any residual disability resulting from a left wrist and hand fracture during service. 6. The Veteran’s bilateral knee arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disabilities are not otherwise etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for the residuals of a left eye injury have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a cervical spine disorder have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for asthma have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for the residuals of a left wrist and hand fracture during service have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1991 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In January 2020 the case was remanded to afford the Veteran VA examinations. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). 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 U.S.C. § 1153; 38 C.F.R. § 3.306(b). 1. Bilateral Foot Disabilities The Veteran has a current bilateral pes planus (flat feet) and bilateral plantar, fasciitis both of which were diagnosed in the February 2020 VA Compensation and Pension examination. Thus, the remaining question is whether the current foot disabilities are related to service. Service treatment records show that on entry examination the Veteran reported “no” to the question which asked if he had a history of foot trouble. On actual entry examination in January 1991, the examiner noted that the Veteran had mild asymptomatic pes planus. In March 1991 the Veteran was treated for complaints of bilateral ankle pain from marching trauma. A March 1991 x-ray examination report noted the presence of “possible stress reaction along the posterior inferior aspect of the calcaneus bone bilaterally.” Subsequent service treatment records are negative for treatment for bilateral foot or ankle disorder. Private medical treatment records dating from 2015 show diagnoses of bilateral plantar fasciitis and foot arthroses. Again, in February 2020 a VA examination of the Veteran was conducted. The diagnoses were bilateral mild pes planus and bilateral plantar fasciitis. The examiner reviewed the pertinent medical history and performed an examination. The examiner’s medical opinion was that any claimed foot or ankle 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 noted that while the Veteran had mild asymptomatic bilateral pes planus on entry, no medical evidence documented any symptomatic pes planus since his entry to service to the present. His current bilateral plantar fasciitis and bilateral heal spurs were diagnosed almost two decades after separation from service and were unrelated to the stress reactions treated early in the Veteran’s service in 1991, and which did not recur or become symptomatic again. The examiner also indicated 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. Specifically, the “Veteran had clear and unmistakable evidence of the preexisting mild asymptomatic bilateral pes planus. There is evidence to indicate the Veteran continued to have this condition, without evidence of symptoms related to the pes planus. The exams in service do not indicate symptomatic pes planus, neither do the exams after separation from service. His pes planus continues to be mild and asymptomatic with pain in feet related to plantar fasciitis and possibly also to the plantar calcaneal heel spurs noted in 2015 and upon x-ray today. No evidence of calcaneal spurs noted in service treatment records including x-rays of bilateral feet. There is no objective evidence to support progression beyond normal progression for this disorder. No evidence of permanent aggravation beyond normal progression identified.” The Board has considered the Veteran’s testimony and statements, to include his assertions that his current foot disabilities are related to the stress reactions during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In summary, upon entry the Veteran had asymptomatic pes planus which did not become symptomatic during service. Hence, the pre-existing condition did not increase in severity during service and was not aggravated by service. As to the remaining foot disabilities, these were not present during service and the most probative evidence indicates they are unrelated to service. For the above reasons, the preponderance of the evidence is against the claims and service connection is denied for right and left foot disabilities. 2. Left Eye Injury The Veteran claims entitlement to service connection for the residuals of a left eye injury. Service treatment records dated in August 1995 show that the Veteran was treated for complaints of right eye pain after being hit in the eye with a twig. The initial treatment report indicated a corneal abrasion was present. Subsequent evaluation was conducted when a large retinal flap tear was suspected. However, further evaluation revealed only vitreous hemorrhage with no retinal tear present. The Veteran has testified that the service treatment records incorrectly identified his right eye being injured during service when in fact his left eye was injured. An August 2015 treatment record notes left eye posterior vitreous detachment with no evidence of retinal tear, as well as bilateral cataracts. In February 2020 a VA eye examination of the Veteran was conducted. After full examination the diagnosis was bilateral eye pingueculas under 1 mm size first being diagnosed on this examination. The examiner noted the Veteran’s in-service history of eye injury, initially thought to include commotio retinae, vitreous hemorrhage, corneal abrasion and subconjunctival hemorrhage. However, according to the examiner, later service records show the eye injuries were initially misdiagnosed and the Veteran only had commotio retinae with a vitreous hemorrhage and not a flap tear or detachment of the retina. The examiner opined that all of the residuals of the eye injury completely resolved. Simply put, after a full examination, there is no competent evidence of any current residual of a left eye injury during service. While the Veteran is competent to report observable symptoms, such as seeing floaters and light sensitivity, he is not competent to diagnose an eye disability or offer an opinion as to its etiology as those are complex medical questions. In this case, the Veteran injured an eye during service; however, the most probative evidence indicates no residuals of that injury. Absent evidence of a current disability related to service, service connection cannot be granted. Service connection for residuals of a left eye injury is denied. 3. Cervical Spine Disorder At the August 2019 hearing the Veteran testified that he did not seek treatment for neck pain during service; he stated his belief that he incurred a current cervical spine disorder as a result of air assault training. Service treatment records do not show that the Veteran was ever treated for any complaints of neck pain during service. A private medical treatment record dated February 2014 indicates that the Veteran sought treatment for neck pain which he reported having for approximately 10 years. A February 2015 private treatment notes the Veteran’s reported history of neck pain for 15 to 20 years. In February 2020, a VA examination of the Veteran was conducted. The Veteran reported an onset of neck pain from rappelling during training in service in 1995. After full examination the diagnosis was cervical spine degenerative disc disease at C5-C6. The examiner’s medical opinion was that the claimed cervical spine disorder was less likely than not related to service, including the Veteran’s reported rope training. The examiner explained that there was an inconsistent history of onset without any objective evidence of injury, trauma, or condition of the neck in service or within one year after separation from service. While the Veteran reports his belief that his current neck disability was incurred during service, the only competent medical opinion of record indicates it is not. Moreover, the Veteran’s reports of a continuity of symptomatology are not credible in light of his varying reports of his length of history of neck pain in the post-service treatment records. The preponderance of the evidence is against the claim and service connection for a cervical spine disorder is not warranted. 4. Asthma The Veteran claims entitlement to service connection for asthma. He claims that he was exposed to fumes while assigned to duties in a vehicle battery shop and this caused his current asthma. Service treatment records reveal that pulmonary function tests of the Veteran were conducted. His risk factors were noted to be being a smoker and working in the battery shop. However, test results were normal. In February 2020, VA examination of the Veteran revealed a diagnosis of asthma dating from 2013. After reviewing the medical evidence of record which revealed post-service treatment for complaints of wheezing dating from after 2000, the examiner indicated that the Veteran’s current asthma was less likely than not related to service to include any exposure to fumes during duties in the battery shop during service. The examiner noted the complaints of coughing during service, to include the circumstances around the complaints, and found there were no objective indications of asthma during service. The examiner found it significant that pulmonary function tests were normal during service and that asthma was not diagnosed until 2013 even after pulmonary tests were conducted in 2003. The preponderance of the evidence is against the claim. The service treatment records reveal normal pulmonary function tests during service and there is no competent evidence linking the Veteran’s current asthma to service. Instead, the VA medical opinion explains why based on the history of the disorder the Veteran’s asthma is not related to service. Accordingly, service connection for asthma is not warranted. 5. Left Wrist and Hand Fracture Service treatment records confirm that in December 1994 the Veteran suffered a closed fracture of the left third metacarpal after falling on his left hand. By March 1995 the Veteran’s fracture was reportedly healing with range of motion within full limits but with stiffness and limited grip strength. A February 2014 private treatment record revealed the Veteran had complaints of bilateral wrist pain with the left being worse than the right for about 10 years. He reported that he had broken both wrists “a couple of times.” In February 2020, VA examination of the Veteran’s left hand and wrist revealed normal findings. The examiner’s medical opinion was that it was less likely than not that any claimed left hand and wrist disorder was incurred in or caused by the Veteran’s in-service left third metacarpal fracture. The examiner stated that after review of claim file, completion of the examination including negative left wrist x-rays and negative left hand x-rays (to include any evidence of previous healed fracture), no current/chronic diagnosis of the hand or wrist was/is supported. The examiner noted the Veteran did not report functional impairment or functional loss related to the left hand and wrist and the examiner indicated there was no functional impact. The preponderance of the evidence is against the claim. The evidence does not support that the Veteran has any current left hand or wrist disorder which is the result of the left third metacarpal fracture during service. Accordingly, service connection is not warranted, and the appeal is denied. 6. Bilateral Knee Disabilities The Veteran claims service connection for right and left knee disabilities. He testified that he slid down ropes during Air Assault school which he believes given his weight could have affected his knees. On other occasions he asserted that his claimed bilateral knee disabilities were caused secondary to his feet. The Veteran’s service treatment records are negative for any complaints of or treatment for knee pain during service. Private medical records dating from 2014 reveal complaints of knee pain and a diagnosis of arthritis which the physician indicated was related to his weight. Other records indicate a diagnosis of obesity. VA examination in February 2020 indicated a diagnosis of bilateral knee arthritis. The examiner’s medical opinion was that the Veteran’s bilateral knee arthritis did not have its onset during service or within the first year of service and that it was not incurred in service nor was it caused secondary to any condition. The preponderance of the evidence is against the claims for service connection for a right knee and left knee disabilities. The evidence does not show an onset of arthritis during service or within the first post-service year. The medical opinion of record indicates that the current bilateral knee arthritis is not related to service. The private records suggest the Veteran’s weight, and not his service, are responsible for the knee arthritis. Accordingly, service connection for right and left knee disorders is not warranted and the appeal is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, 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.