Citation Nr: 21013070 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-00 366 DATE: March 8, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a skin disability, bilateral feet is remanded. FINDINGS OF FACT 1. The Veteran’s left knee joint osteoarthritis, degenerative joint disease (DJD) status post meniscectomies with scars, and knee instability are not due to or a result of any in-service injury or disease. 2. The Veteran’s right knee meniscal tear, DJD status post meniscectomies with scars, and knee instability are not due to or a result of any in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from February 1974 to February 1978. He reported additional service with the Army National Guard from March 1983 to October 1986. These matters come before the Board of Veterans Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s notice of disagreement (NOD) was received in January 2015. The RO issued a statement of the case in December 2016, and the Veteran’s VA Form 9, substantive appeal to the Board was received in December 2016. In June 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In August 2020, the Board remanded the claims for further development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such 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 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 1. Entitlement to service connection for left and right knee disabilities. The Veteran contends that he injured his knees during two falls in service. Service treatment records (STRs) reflect that in April 1975, the Veteran had trauma to the left lower leg from a fall one day ago. On examination, there was a small amount of edema with ecchymosis. The bones were grossly intact. An impression of contusion was noted. On separation in January 1978, the report of medical examination reflects a normal clinical evaluation for the lower extremities. Post-service, May 2009 private treatment records reflect that radiology imaging of the right knee revealed an impression of horizontal nondisplaced tear in the posterior horn of the medial meniscus. There is moderate degenerative joint. In June 2009, the Veteran was seen for complaint of right knee pain and reported that he injured his knee a month and a half ago. The medical evidence of record reflects a January 2014 diagnosis of chronic knee pain. A March 2014 General Medical Pension disability benefits questionnaire (DBQ) report notes that the Veteran has a diagnosis of degenerative joint disease (DJD), bilateral knees. He developed bilateral knee pain which became progressively worse. Physical limitations were noted on examination. X-ray showed mild tricompartmental osteoarthritis of both knees. In a February 2017 statement from the Veteran’s wife, she reported that she married the Veteran after service, and he had trouble with his knees. During the June 2020 Board hearing, the Veteran testified that he got medevacked because he fell with a full pack of gear, which is about 65 pounds. He reported that the fall was 20 to 25 feet down. He reported that he was unable to move his legs. He reported that this happened in 1975. He reported that he had over 100 pounds of gear on him in addition to his own body weight when he fell. The Veteran reported that he hurt both of his knees. He stated that he was on physical profile for about a month. The Veteran reported that he was injured in a cold winter training. He reported that he had his first operation on his knees in 1981. He reported that in service, he would continue to visit the clinic and get medication. He reported that the symptoms have continued since service. An October 2020 VA examination report reflects that the Veteran had a diagnosis of right knee meniscal tear. He also had knee joint osteoarthritis, DJD status post meniscectomies with scars, and knee instability, bilaterally. The Veteran reported that he injured his bilateral knees while he fell 25 plus feet with 100 pounds of gear. He reported that he was on profile for a month. 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. He reported that there was insufficient evidence to support a chronic knee condition stemming from active duty. He noted that the 1983 enlistment makes no prior mention of a chronic knee problems and there are no continuing treatment records in the 1990s to support continuity of said condition. He reported that the March 1983 enlistment examination negates the contention that he injured his knees during active duty in the 1970s because there is no documentation of prior surgery. He stated that he may have injured his knees though had no sequela. Upon review of the evidence of record, the Board finds that service connection for a left and right knee disability is not warranted. Initially, the Veteran has a current diagnosis as reflected by the medical evidence of record. Specifically, he has been diagnosed with right knee meniscal tear, bilateral knee joint osteoarthritis, DJD status post meniscectomies with scars, and knee instability. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service. Based on a review of the available records and his particular expertise, the examiner found that the Veteran’s left and right 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. Specifically, the examiner noted the Veteran’s statements regarding his knees, the inconsistencies of his statements with the medical record, and provided an adequate rationale for his conclusion that the Veteran’s disability was not due to service. As the clinician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his left and right knee disabilities are related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his knee disabilities relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran’s statements are therefore not competent in this regard. Notably, STRs do reflect an in-service fall where he injured his leg. However, the examiner in service specifically noted that his bones were intact, and he was assessed with a contusion. X-ray revealed no fracture. The Veteran was put on light duty (L.D.) for three days. There were no complaints regarding the right knee, and no indication that the Veteran was put on a month-long profile after the left leg injury. Significantly, the separation report of medical examination reflects a normal clinical evaluation at separation with respect to the knees. Moreover, the medical evidence of record reflects that the Veteran himself reported that he injured his knee in 2009. Also, while the Veteran testified that he had his first knee operation in 1981, no such operation was noted on the March 1983 Army National Guard Report of Medical History, and the Veteran specifically denied having had a knee operation up to that point. Accordingly, given the inconsistencies between the Veteran’s statements and the findings in the STRs, the Board places greater weight on the specific, reasoned opinion of the VA examiner than the Veteran’s more general lay assertions. Moreover, even assuming, arguendo, that the Veteran has had continuity of pain since service, these lay statements of pain are outweighed by the medical examiner’s opinion because the Veteran, as a lay person, is not competent to know that the cause of his knee pain during service is the same cause of his knee pain now, particularly where, as here, neither meniscal tears nor arthritis of either knee was shown during service or to a compensable degree within the first post-service year. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claims of service connection for left and right knee disabilities. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability. The Veteran contends that his right hip strain is due to carrying heavy weight during his active service. The March 2014 General Medical Pension DBQ report reflects that the Veteran has a diagnosis of left hip strain. X-rays of the left hip were normal. He had chronic left hip pain and restrictions in physical activities. Physical examination showed limitation in range of motion. The treatment records since then have shown consistent report of right hip pain. During the June 2020 Board hearing, the Veteran testified that his right hip pain is due to carrying heavy weight on his back as well as his falls in service. He reported that he started to have inflammation and numbness after his second fall, and he had an altered gait. An October 2020 VA examination report reflects that the Veteran had diagnoses of osteoarthritis, femoral acetabular impingement syndrome, and iliopsoas tendinitis of the right hip. The Veteran reported that he began noticing hip pain after numerous falls, carrying heavy weight in service that has progressed/worsened. The examiner reported that there was insufficient evidence to support right hip condition stemming from active duty. He reported that the right hip disabilities are less likely as not incurred in or caused by the carrying heavy weight during service. The Board finds that this opinion is incomplete as the examiner failed to take into consideration the Veteran’s claims of chronicity. Additionally, the examiner did not provide a complete rationale for his conclusion that the Veteran’s right hip disability was not due to service. Accordingly, the Board finds that an additional medical opinion by an appropriate clinician is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a skin disability, bilateral feet. The Veteran contends that he has a skin disability of the bilateral feet that was due to trench foot in service. Medical treatment records reflect that the Veteran consistently complained of dry skin and painful feet. In November 2012, the Veteran reported chronic dry feet which he believed was due to trench foot while in service. In his January 2015 NOD, the Veteran reported that his feet were constantly wet in service and there was no time for dry socks or boots. He asserted that the water was contaminated and he has had issues with his feet ever since. During the June 2020 Board hearing, the Veteran testified that the green socks they had to wear worsened his bilateral foot disability. He reported that he had a reaction to them and received cuts. He reported that he was told he could not switch to white socks. He reported that cracking and bleeding began in service and has continued. An October 2020 VA examination report reflects that the Veteran has a diagnosis of onychomycosis. The Veteran reported that during winter training, the Veteran’s feet were exposed to unsanitary conditions causing him to get trench foot. He reported that his condition has progressed/worsened since service. The examiner reported that there was no chronic skin condition noted by 1983 physician. He concluded that there was insufficient evidence to support onychomycosis stemming from active duty. The Board finds that this opinion is incomplete as the examiner failed to take into consideration the Veteran’s claims of chronicity. Notably, a diagnosis of onychomycosis is chronic and can stem from fungus and mold. Additionally, the examiner did not provide a complete rationale for his conclusion that the Veteran’s disability was not due to service. Accordingly, the Board finds that an additional medical opinion by an appropriate clinician is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the etiology of the Veteran’s right hip disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the clinician prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Only if the clinician indicates that an examination is necessary should one be scheduled. The clinician should identify all right hip disabilities that have existed since the date of the claim. Then, the clinician should indicate whether it is at least as likely as not (at least a 50 percent probability) that any right hip disability is related to or had its onset during the Veteran’s military service, to include his in-service fall. The clinician should address the Veteran’s written statements and the other evidence of record. All examination findings/results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. Obtain a medical opinion regarding the current nature and likely etiology of the Veteran’s onychomycosis. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the clinician prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Only if the clinician indicates that an examination is necessary should one be scheduled. (Continued on the next page)   The clinician should opine as to whether the Veteran has a current skin disability or other foot disability of either foot, to include trench foot and/or residuals therefrom, and whether it is at least as likely as not that it (1) began during active service; (2) manifested to a degree of at least 10 percent within one year after discharge from service; OR (3) is related to an in-service injury or disease, to include his reported in-service reaction to the green socks. In providing the requested opinion, the clinician should specifically consider and discuss all pertinent medical evidence, lay assertions, and the service treatment records. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.