Citation Nr: 21011620 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-60 752 DATE: March 2, 2021 ORDER Entitlement to service connection of a left hand condition, manifested by neurological symptoms is granted. Entitlement to service connection of a low back condition, manifested by low back pain, is granted. Entitlement to service connection of a left knee strain is denied. Entitlement to service connection of a left ankle condition is denied. Entitlement to service connection of a right ankle condition is denied. FINDINGS OF FACT 1. The Veteran experiences neurological symptoms in his left hand which had onset during active service following a laceration incident, with continuity to the present. 2. The Veteran’s low back pain manifested during active service, following a fall, and has continuity to the present. 3. The Veteran’s current left knee strain is less likely than not related to any incident of active service; to the extent that his left knee disability preexisted active service, it was not aggravated beyond natural progression thereby. 4. The Veteran’s present left ankle strain is less likely than not related to any incident of active service. 5. The Veteran does not have a presently diagnosed right ankle condition; he did not sustain any in-service injury or incident associated with the right ankle. CONCLUSIONS OF LAW 1. The criteria for service connection for neurological symptoms of the left hand are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for low back pain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee strain are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 4. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to January 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge at a hearing held virtually. A transcript of that hearing is of record. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether or not the claimed disability is listed as a chronic disease for presumptive purposes, continuity of symptoms from separation to the present is a factor to be considered in assessing such claims. Service connection may also be granted for a condition which clearly and unmistakably preexisted service, where there is a finding that the disability increased during service, and that increase was not due to the natural progression of the disease. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304 (b), 3.306(a). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of a left hand condition, manifested by neurological symptoms The Veteran seeks service connection of a left hand condition, manifested by numbness and other neurological symptoms. Affording the Veteran the complete benefit of the doubt, the Board finds that the claim should be granted. As an initial matter, the Board recognizes that the Veteran suffered a laceration to his left hand during active service, which required stitches. An examination conducted in 2015 did not identify any specific diagnosis in the left hand. Nonetheless, an associated peripheral nerve examination did note mild changes suggestive of borderline median nerve focal neuropathy about the wrist, as well as relatively reduced amplitude compared to the right hand, although radial nerve neuropathy could not be confirmed. For his part, the Veteran asserts numbness in the left hand which he has experienced since the time of his laceration in active service. It is further noted that the Veteran has been granted service connection of a scar associated with that laceration. An opinion rendered at the time of the 2015 examination found that the Veteran’s carpal tunnel syndrome is not affected with the left hand scar. In support of this, the examiner noted that radial nerve neuropathy could not be confirmed with nerve conduction or EMG testing, despite the Veteran reporting a superficial area around the scar that has decreased sensation to light touch. It further noted that his separation examination in January 1977 did not note sensation issues at that time, and there was no evidence of treatment for hand issues between separation and the claim. The Board finds this opinion to be of limited persuasive value in this matter. Initially, it is noted that, while the opinion relies on a lack of a specific diagnosis, it ignores the fact that the Veteran was found to have actual numbness around the scar itself. The opinion further notes that the numbness was not reported upon separation, however, the Board has reviewed the Veteran’s separation examination and it also failed to note the laceration itself, however, there is no question that it existed at that time. Finally, to the extent that the examiner relies on a lack of treatment between separation and the present, the Board notes that this statement ignores the Veteran’s own competent and credible reports of symptoms since the time of service into consideration. Persuasive in this matter, the Board finds the Veteran’s own statements regarding symptoms since service. He is competent to report such observable symptoms, and based on the evidence of record, and his own testimony, the Board finds his lay statements to be credible. Further, the Board finds the August 2015 diagnostic study to be similarly persuasive. Although it could not confirm radial nerve neuropathy, it did note reduced amplitude in the left hand, which was referred to as “relevant to [the patient’s] left hand trauma.” In light of the above, the Board will afford the Veteran the benefit of the doubt and grant service connection of a left hand disability, manifested by numbness, due to his in-service laceration. 2. Entitlement to service connection of a low back condition, manifested by low back pain The Veteran seeks service connection of a low back disability, manifested by low back pain. Affording the Veteran the benefit of the doubt, the Board will grant the claim. Initially, the Board recognizes that the Veteran does not have an official diagnosis beyond low back pain. Nonetheless, a VA examination in June 2017, confirmed that his pain does result in loss of range of motion, and therefore it may serve as a “disability” for VA purposes. A review of the Veteran’s in-service treatment records does not confirm any specific in-service low back injury or incident. However, the Veteran has testified before the undersigned Veterans Law Judge that he sustained a fall down a ladder while service aboard a ship, and that he fell on his back. This has also been reported to his private treatment providers, and has been found credible by the 2017 VA examiner. Based on this evidence, as well as his in-person testimony, the Board finds the lay statements regarding an in-service fall to be credible. In June 2017, the Veteran was afforded a VA examination. The examiner opined that the present low back pain was less likely than not related to the in-service incident, as reported by the Veteran. In support of this, the examiner noted the lack of any treatment in the service treatment records, and no evidence of back pain between 1977 and 2012 in the record, and no complaints between 2012 and 2014 in his primary care records for that period. It is noted that in February 2015, a private physician found the Veteran to have complaints of back pain for approximately 35 years. The examiner concluded that there is no evidence of continuation of medical care for low back problems, therefore a nexus cannot be established from service to the present complaints of back pain. The Board finds this opinion of limited probative value as it relies exclusively on the lack of treatment records, and does not discuss the Veteran’s own competent and credible reports of back pain since the time of his incident in service. Favorable to this appeal is the Veteran’s own competent and credible reports of back pain, which had onset following his in-service fall, as well as private treatment records which document complaints of back pain going back 35 years, thus, also finding this evidence to be competent and credible. In sum, when weighing the evidence in this matter, the Board finds that it is at least in equipoise that the Veteran’s present low back pain started during active service, and had continuity to the present. As such, the claim is granted. 3. Entitlement to service connection of a left knee strain The Veteran seeks service connection of a left knee strain. The Board finds that the claim should be denied. As an initial matter, the Board acknowledges the present diagnosis of a left knee strain. The evidence also indicates that the Veteran had a left knee condition prior to entering service. He testified as such during his hearing before the undersigned, and stated his belief that his active duty service aggravated his pre-existing knee condition. His service treatment records indicate several complaints of knee pain during service, generally diagnosed as chondromalacia. The Veteran was afforded a VA examination in 2015. Following that examination, the examiner found the present knee disability to be less likely than not related to any in-service complaints of knee pain, noting that there was no evidence of knee pain at separation, nor any evidence of knee complaints in the intervening years. An addendum opinion, dated in September 2015, stated that the Veteran’s service treatment records showed that the condition clearly and unmistakably preexisted service. It was also not aggravated beyond its natural progression by any in-service incident, injury or illness. In support of this, the examiner referred to the medical records, particularly the service treatment records which, although noting some treatment for knee pain, did not show true ongoing left knee issues throughout service, as well as the present examination to include the Veteran’s own reports of pain throughout the years. The Board finds these opinions persuasive. It was rendered by a medical professional in contemplation of the complete medical record, the Veteran’s own lay statements, as well as known medical principles. The Board has carefully reviewed the evidence of file, but finds no medical evidence which would contradict this opinion. The Board recognizes the Veteran’s own lay statements that his knee was aggravated beyond natural progression by service, but finds those statements of limited probative value. While a lay person such as the Veteran is competent to report observable symptomatology, he is not competent to report on the actual mechanics of the injury itself. Indeed, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the progression of his knee disability throughout service, especially in light of the VA examiner’s conclusions to the contrary and the fact that the evidence fails to show any specific aggravating factor in during active service. See id. Ultimately, while a preexisting condition may have shown signs of flares during active service, absent some evidence of an actual worsening of that disability, and that that worsening was beyond the natural progression that would be expected of that disability, a claim based on a preexisting condition fails. In this matter, the evidence simply does not support that the Veteran’s left knee was worsened beyond natural progression by any incident of service. In sum, the Board finds that the Veteran’s left knee strain, which clearly and unmistakably preexisted active service, was not aggravated beyond natural progression thereby. The claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 4. Entitlement to service connection of a left ankle condition 5. Entitlement to service connection of a right ankle condition The Veteran seeks service connection of a bilateral ankle condition. The Board finds that the claims should be denied. The Veteran was afforded a VA examination in July 2013, at which time he was diagnosed with a left ankle strain. His service treatment records indicate he was diagnosed with a second degree sprain without residuals in 1973, and he was returned to duty shortly thereafter. He did not have any further complaints of ankle issues during service, and did not report any left ankle condition upon separation in 1977. For his part, he reported to the examiner that he injured his ankle running in boot camp, and had to go to the sick bay. Following a physical examination of the Veteran, and a review of the complete claims file, the examiner concluded that the Veteran’s left ankle strain, as presently diagnosed, was less likely than not related to his 1973 ankle sprain. In support of this opinion, the examiner noted that the service treatment records only reported a single incident early in his military career, but indicated that he was shortly thereafter returned to duty without any residuals, and he did not complain of any further ankle issues thereafter. Further, despite the Veteran’s reports of symptoms, there is no evidence of any ankle conditions in the medical record from 1977 to the present. The Board finds this opinion persuasive. It was rendered by a medical specialist following a physical examination, to include a review of the complete medical history, and considered the Veteran’s own lay statements regarding the initial incident, and symptoms to the present. There is no indication that the examiner failed to consider the Veteran’s lay statements when giving the opinion of record. The Board further notes that there is no medical evidence of record which would contradict this medial opinion. The Board does recognize the Veteran’s own beliefs that his present left ankle strain is the result of his sprain in 1973, but finds this to be of limited probative value. As noted above, lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his present left ankle strain, especially in light of the VA specialist’s conclusions to the contrary and the fact that the evidence fails to demonstrate any symptoms after the initial sprain in 1973, or any intervening symptoms since that time. See id. As such, the Board finds that the Veteran’s left ankle strain is less likely than not related to any incident of active service, to include the 1973 sprain. As such, that claim should be denied. Turning to the question of the right ankle, the Board finds that there is no evidence of record that the Veteran has a presently diagnosed right ankle condition. In July 2015, he was afforded a VA examination of his ankles at which time he denied that he was seeking service connection of a right ankle disability. He refused an examination of the right ankle, and no right ankle disability was diagnosed. Following his initial denial of that disability, the Veteran submitted a statement in December 2015 in which he stated, “I have no claims for [this issue] as my right ankle injury did not occur due to military service.” Although treatment records from May 2013 note ankle pain in the right ankle, it was noted to have commenced one week earlier. Here, the Board notes that the Veteran had ample opportunity for an examination of his right ankle, however, he refused that examination. The duty to assist is not a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board cannot confirm a present right ankle disability, and the claim fails the primary criterion of service connection. Further, a review of the Veteran’s service treatment records do not document any in-service incident, illness or injury to which a present right ankle disability, if it exists, could be etiologically linked. This is further confirmed by the Veteran’s own December 2015 statements which deny any in-service right ankle issues. Therefore, the claim also fails the second criterion of service connection and must be denied. Finally, to the extent that in his hearing he testified that his right ankle may be secondary to his left ankle disability, the Board notes that it has denied the left ankle claim, and therefore there is not a primary disability upon which to grant secondary service connection. In sum, the Board finds that the Veteran’s left ankle disability is less likely than not related to any incident of active service. His right ankle disability is unconfirmed, and cannot be linked to any in-service incident or other service-connected disability. As such, both claims are denied.   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel