Citation Nr: 21013246
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 16-32 264
DATE: March 9, 2021

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for a right knee disability is denied.

Service connection for a left foot disability, to include frostbite residuals, is denied.

Service connection for a right foot disability, to include frostbite residuals, is denied.

A disability rating for a lumbar spine disability in excess of 20 percent is denied.

A disability rating of 20 percent for left lower extremity lumbar radiculopathy, effective July 9, 2013, through October 2, 2019, is granted.

A disability rating for left lower extremity lumbar radiculopathy in excess of 20 percent, effective prior to and since October 3, 2019, is denied.

A disability rating for right lower extremity lumbar radiculopathy in excess of 20 percent, effective since November 13, 2012, is denied.

FINDINGS OF FACT

1. The Veteran’s current bilateral hearing loss disability, as shown in 2014 but later resolved, was not shown as chronic in service and did not manifest to a compensable degree within one year after active duty; continuity of symptomatology is not established; and it is not otherwise related to active service.

2. The Veteran’s current right knee disability, to include chondromalacia, is not related to service and was not caused or aggravated by service-connected disability.

3. There is no current diagnosis of frostbite residuals in either foot or a neurologic condition other than the service-connected bilateral lower extremity radiculopathy; and a current left or right foot disability that was present during the appeal period, to include plantar fasciitis, was not incurred in or aggravated by service. 

4. Throughout the appeal period, the Veteran’s low back disability has manifested by pain and painful motion, but with forward flexion of the thoracolumbar spine to greater than 30 degrees, and no ankylosis or incapacitating episodes.

5. There was a factually ascertainable increase of compensable left lower extremity impairment associated with the low back disability as of July 9, 2013. 

6. Throughout the appeal period, the Veteran has had no more than moderate incomplete paralysis of the sciatic nerve for the left and right lower extremities.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria for service connection for a right knee disability, to include chondromalacia, are not met. 38 U.S.C. §§ 101(24), 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310.

3. The criteria for service connection for a left foot disability, to include frostbite residuals or plantar fasciitis, are not met. 38 U.S.C. §§ 101(24), 1101, 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306.

4. The criteria for service connection for a right foot disability, to include frostbite residuals or plantar fasciitis, are not met. 38 U.S.C. §§ 101(24), 1101, 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306.

5. The criteria for a rating for a lumbar spine disability in excess of 20 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 & 5243.

6. The criteria for a disability rating of 20 percent for left lower extremity lumbar radiculopathy, effective July 9, 2013, through October 2, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

7. The criteria for a rating for left lower extremity lumbar radiculopathy in excess of 20 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

8. The criteria for a rating for right lower extremity lumbar radiculopathy in excess of 20 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from October 1985 to October 1989 and the U.S. Marine Corps from February 1991 to September 1994, with prior and subsequent service in the Army Reserve and Army National Guard. 

This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from November 2013, December 2013, and April 2020 rating decisions. The Veteran testified at a Board hearing at a Regional Office in June 2019. The Board previously remanded this matter in September 2019 and July 2020. 

In July 2020, the Veteran updated his representative to the attorney listed in this decision, who is an attorney with the same firm as his prior representative. No additional arguments or evidence have been received since the last post-remand adjudication in October 2020. The prior Board remand directives have been at least substantially completed, as noted below, and the case is ready for a Board decision.

Development for All Claims

As noted in the 2020 remand, the Veteran has reported having ongoing symptoms since service for several of his claimed conditions. Some of the negative nexus opinions for service connection, including causation or aggravation by the Veteran’s back disability or associated lower extremity radiculopathies, were based in part on a lack of documented symptoms. All identified and available treatment records from service, VA, and private providers have been obtained. There is no argument or indication of outstanding records with a reasonable possibility of assisting in substantiating the claims, and no further remand is needed.

In his November 2012 claim, the Veteran appeared to reference treatment in New York and in Bethesda, Maryland, in 1995. A prior statement in April 1994 identified treatment primarily for his back condition from 1992 to 1994 at the National Naval Medical Center in Bethesda. The Veteran’s service treatment records, including for the Reserve and National Guard, from September 1980 to August 2000 include such records of treatment for the back and lower extremities. 

Treatment records from multiple identified VA facilities have been obtained, including from Atlanta, Georgia, from December 1994 and from May 2000 to July 2020. An October 2020 response from the Atlanta system indicated that prior records since September 1994 were not available. There are records from Montrose, New York, the Hudson Valley system and the Bronx from October 2012 to February 2014. There are also records from Ocala, Florida, or Tampa and Gainesville from September 2013 to September 2019, including audiogram results in 2012 and April 2014 (as directed by the prior remands). Finally, there are VA records from Fayetteville, North Carolina, from August 2013 to September 2013. 

VA also received private treatment records for a July 2020 motor vehicle accident, and records from the Social Security Administration (SSA) dated in 2018.

VA examinations and medical opinions were provided in June 2013, April 2016, March 2020 (with reports in April 2020), August 2020, and September 2020. There is no argument or indication of inadequacy or a need for additional evidence or opinions. The relevant evidence is discussed further below under each issue.

Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service, even if the condition was first diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 

Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

For Reserve or National Guard service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while on active duty for training (ACDUTRA or ADT), or for an injury incurred or aggravated during inactive duty training (INACDUTRA or IDT), but not for a disease during inactive duty training, except from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6.

Presumptions for direct service connection apply for certain conditions, which are discussed below as relevant, but they generally do not apply to ACDUTRA or IDT.

Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. Such aggravation need not be permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019).

In adjudicating the merits of such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

As relevant to all of the service connection issues on appeal, although the Regional Office made a finding of unavailability of service treatment records in November 2013, service personnel and treatment records were received in 1994, 2014, and 2016. A June 2016 response from the National Personnel Records Center (NPRC) noted that all available records were sent for scanning into his electronic file. VA made appropriate efforts to attempt to obtain any outstanding records. Additionally, although there is still an indication of some missing service records from 1994, there is no reasonable possibility that they would assist in substantiating these claims. No further remand or development is needed for a fair adjudication. 

Specifically, the Veteran had his first period of active duty in the Army from October 1985 to October 1989, then a second period of active duty in the Marines from February 1991 to September 1994. His service records also reflect Army Reserve and National Guard service. The records in the claims file include a May 1985 enlistment examination for the Army, with continued review and granting of a waiver of defects for delayed entry in October 1985. There is also an August 1999 enlistment examination for the Army National Guard. These examinations both include a full Report of Medical History and Report of Medical Examination. Otherwise, VA examiners have noted that the file does not include separation examinations for the Veteran’s first and second periods of active duty (in 1989 and 1994) or an entrance examination for his second period of active duty (in 1991). 

No examination was conducted for the Veteran’s separation from his first period of active duty in 1989. Instead, an August 1989 record signed by the Veteran reflects that he declined a medical examination upon transition from active duty. An October 1989 record then reflects that the Veteran’s physical status was such that he was found physically qualified for separation without an examination, and a physical profile (PULHES) designated level 1 for all sections, indicating no defects. The Veteran was then transferred to the Army Reserve as of October 1989. Thus, this separation examination is not missing; instead, it was never created.

The Veteran began his second period of active duty for the Marines in February 1991. There is a February 1991 Marines recruit screening physical examination report for this period. Although there was no full Report of Medical History or Report of Medical Examination, this report discussed subjective reports and objective conditions. Thus, it acts as an entrance examination and is not missing. 

The Veteran was released from the Marines in September 1994. A March 1994 service record notes that a Medical Evaluation Board (MEB) referred the Veteran for a Physical Evaluation Board (PEB) due to orthopedic complaints. The full MEB and PEB records are not in the file. However, the Veteran’s DD Form 214 for this period reflects that he was released due to physical disability under VA disability code 5295, which was the code at the time for a back disability. As noted above, there are full history and clinical examination reports for the Veteran’s August 1999 Army National Guard enlistment. There is also an April 2000 annual medical certificate in which the Veteran reports hurting his back while in the Marines, consistent with the DD Form 214 and the MEB notation of orthopedic problems. Thus, there is no argument or indication that the MEB or PEB records would have a reasonable possibility of assisting in substantiating the claims.

1. Service connection for bilateral hearing loss 

VA received the Veteran’s claim for service connection in November 2012. He contends that he has current hearing loss related to hazardous noise exposure and ear pain in service. See, e.g., June 2019 Board hearing. A December 2013 rating decision found no current disability.

A current disability is now shown for appeal purposes. There is evidence of a bilateral hearing loss disability based on April 2014 VA audiometric test results obtained upon remand, although prior and subsequent test results did not meet the disability criteria. A current disability is considered shown if it is established as present during the appeal period or recent in time to the filing of the claim, even if the condition later resolved to non-disability status. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

A hearing loss disability requires objective testing. Pure tone thresholds above 20 decibels indicate some degree of hearing impairment, but impaired hearing must meet minimum thresholds to be considered a disability for VA compensation. See Hensley v. Brown, 5 Vet. App. 155 (1993); McKinney v. McDonald, 28 Vet. App. 15 (2016). Specifically, VA will consider impaired hearing to be a disability only when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

In this case, a November 2012 VA treatment record with audiometric testing reflects some degree of hearing loss, but no disability for VA purposes. In the right ear, pure tones at the 500, 1000, 2000, 3000, and 4000 Hertz levels were 15, 20, 20, 30, and 10 decibels, respectively. The left ear pure tones were 20, 20, 20, 25, and 25 decibels, respectively. Speech recognition was tested using the Maryland CNC test, and scores were 96 percent in the right ear and 100 percent in the left ear. The readings above 20 decibels show some level of hearing loss, but there were no readings of 40 decibels or above and not at least three readings of 26 decibels or more in either ear. Speech scores were also in the normal range. 

An April 2014 VA audiologic consult noted that pure tone audiometry showed flat mild sensorineural hearing loss bilaterally. In the right ear, thresholds at the 500, 1000, 2000, 3000, and 4000 Hertz levels were 35, 35, 40, 45, and 40 decibels, respectively. The left ear pure tone thresholds were 40, 40, 35, 40, and 55 decibels, respectively. The provider stated that the Veteran’s speech recognition was 100 percent bilaterally and commensurate to his pure tone average. These results met the VA disability criteria bilaterally based on pure tones of 40 decibels or higher. The Veteran was issued hearing aids based on the April 2014 VA test results. 

Subsequently, a January 2016 VA treatment record noted a limitation of hearing impairment, and a March 2016 VA treatment record noted that the Veteran was “hard of hearing.” However, a March 2016 VA neurological consult stated that there was normal hearing bilaterally for the 8th cranial nerve. A June 2017 VA treatment record then noted that the Veteran required hearing aids to hear. 

Testing during a March 2020 VA examination again did not show a disability. In the right ear, pure tone thresholds at the 500, 1000, 2000, 3000, and 4000 Hertz levels were 25, 25, 20, 25, and 25 decibels, respectively. The left ear pure tone thresholds were 15, 20, 20, 20, and 30 decibels, respectively. Speech discrimination was 100 percent bilaterally. Although the thresholds above 20 decibels showed some impairment, they did not rise to the disability level.

It is unclear why there was such a difference between the 2020 readings and the higher 2014 readings, and the 2020 results were more similar to the 2012 results. The 2014 record reflects that the Veteran had cerumen (or ear wax) in his ears, and some (but not necessarily all) cerumen was removed prior to testing. As summarized below, the Veteran also had cerumen at service entry in 1985, which was removed, and several times for VA treatment after service. Nevertheless, there was no notation or medical determination that the April 2014 results were invalid or unreliable. Therefore, resolving reasonable doubt in the Veteran’s favor, the April 2014 results are accepted as showing a bilateral disability during the appeal, even though it may have been temporary and appears to have resolved.

Having found a current disability, the in-service injury, disease, or event element is also established. The Veteran has stated that he experienced loud noise as a gunner, including shooting down aircraft using missiles, with loud and essentially constant noise. He also stated that he took his earplugs out to hear his sergeant, and his ears hurt or had a burning sensation during service after shooting. The Veteran denied occupational or recreational loud or significant noise exposure after service. See, e.g., November 2014 notice of disagreement, June 2019 Board hearing; November 2012 and April 2014 VA treatment records; 2016 and 2020 VA examinations. 

The Veteran’s DD Form 214 and other service records reflect that he served as a chaparral or cannon crewmember in the Army from 1985 to 1989 and as an administrative clerk in the Marines from 1991 to 1994. As noted by the August 2020 VA examiner, his Army duties had a high probability of hazardous noise exposure, although his Marine duties had a low probability of such exposure. Additionally, service treatment records include audiometric evaluations for hearing reference and annual evaluations for hearing conservation due to noise exposure from the Veteran’s duties, with hearing protection issued, in 1986 and 1987. He was also treated for ear pain or otitis during his Army service in 1985. The Veteran is competent to report excessive noise exposure and ear pain or a burning sensation related to his duties as a gunner, and such reports are consistent with his documented service duties and treatment records during his Army service.

Although the current disability and in-service elements are met, the nexus element is not established for the Veteran’s hearing loss, based on either the chronic disease presumption or a lay or medical link between the current disability and service. As explained below in more detail, this claim must be denied because the Veteran’s reports of having continuous hearing loss symptoms or disability since service are not credible, and the competent evidence does not otherwise establish a relationship to service under any reasonably raised theory of service connection.

The Veteran is competent to report experiencing observable hearing difficulties consistently since service. However, his reports of continuity of symptomatology are not credible because they are inconsistent with the Veteran’s express reports and objective evidence in contemporaneous records during and since service. 

Specifically, a Report of Medical Examination for the May 1985 Army enlistment examination noted a defect of left ear cerumen obstruction, although pure tone thresholds were within normal limits. The readings from 500 to 6000 Hertz were 15, 15, 10, 10, 15, and 15 in the left ear; and 5, 0, 5, 0, 5, and 15 decibels in the right ear. With updates through October 1985, this report indicates that a waiver was recommended and granted for this defect. Another record noted that the Veteran was granted conditional qualification for the delayed entry program (DEP) based on his physical examination showing obstruction in one or both ears due to cerumen (ear wax). He was unable to enter active duty until the ears were cleared of this obstruction by a physician, and in October 1985 a physician verified that the cerumen obstruction of the ear canals was removed and the tympanic membranes were visualized. In his 1985 Report of Medical History, the Veteran reported ear, nose, or throat trouble, which he specified as involving the throat, and the physician’s summary noted a tonsillectomy with no problems since that procedure. 

In November 1985, the Veteran was treated for ear pain, a sore throat, and a stuffy head for three days, which was diagnosed as an upper respiratory infection or serous otitis. He did not expressly report hearing loss for this treatment, although his notation of a “stuffy head” may have involved some hearing difficulty. There were no subsequent subjective ear or hearing complaints in service records. In other words, the Veteran did not report noticing any hearing loss while in service. 

In February 1986, audiometry was conducted to establish a reference audiogram following noise exposure in duties, and more than 15 hours had passed since the last noise exposure. The report stated that personal hearing protection of ear plugs were previously issued, which were a triple-flange type, and double protection was used. Pure tone thresholds from 500 to 6000 Hertz were 20, 25, 20, 20, 25, and 20 decibels in the left ear; and 10, 10, 20, 10, 15, and 30 decibels in the right ear. The readings above 20 decibels reflect some degree of hearing loss, but the results did not meet the criteria for a VA disability in either ear under § 3.385. Additionally, applying the formula noted in August 1986 and November 1987 examinations below, these pure tone thresholds reflect worsened results from 1000 to 4000 Hertz with a positive threshold shift of 10 decibels at all levels in the right ear and from 5 to 20 decibels in the left ear. The 20 decibel shift could be a significant shift.

In August 1986, hearing conservation data was collected for an annual examination, which compared the results to the February 1986 audiometry. The August 1986 results from 500 to 6000 Hertz were 10, 10, 15, 15, 5, and 15 decibels in the left ear. These results were noted to show a shift from 1000 to 4000 Hertz of -15, 5, -5, and -20. For the right ear, the August 1986 results from 500 to 6000 Hertz were 15, 15, 15, 10, 5, and 20 decibels. These results were noted to show a shift from 1000 to 4000 Hertz of +5, +5, 0, and -10. For the shift data, the report specified that “+” means poorer results and “-" means better results; and there was no significant threshold shift of 20 decibels or greater. Although the left ear showed a negative 20 decibel change at 4000 Hertz, the report shows that this indicated better results, or an improvement in the Veteran’s hearing in that ear. Moreover, the August 1986 results were less than 20 decibels different for each level from 500 to 6000 Hertz compared to the initial May 1985 results for the Veteran’s enlistment examination, which this 1986 report notes would not be a significant threshold shift. This suggests that any higher (worse) results or shifts in thresholds in February 1986 were not permanent, including 30 decibels at 6000 Hertz in the right ear as noted by a VA examiner and a -20 shift in the left ear. 

In November 1987, hearing conservation data for an annual examination again showed some degree of hearing loss above 20 decibels at several levels, but no disability, and found no significant threshold shift of 20 decibels or greater. The 1987 results from 500 to 6000 Hertz were 25, 20, 20, 15, 10, and 20 decibels in the left ear. These results were noted to show a shift as compared to the August 1986 results from 1000 to 4000 Hertz of +10,+5, 0, and +5. For the right ear, the 1987 results from 5000 to 6000 Hertz were 30, 20, 10, 10, 5, and 15 decibels. These results were noted to show a shift from 1000 to 4000 Hertz of +5, -5, 0, and -10.

In addition to the notations in the 1986 and 1987 service records themselves, these results from 1986, 1986, and 1987 are consistent with the notations by VA examiners discussed below of no permanent significant threshold shift in service.

As noted above, the Veteran declined a separation examination from his Army active duty in August 1989 and was found physically qualified for separation without an examination in October 1989. The PULHES profile reflected no defects, including a designation of “1” for “H” for hearing. 

The February 1991 examination at entry into the second period of active duty in the Marines indicates that all defects found were noted, and there were no subjectively reported problems or objectively recorded conditions other than tinea barbae and skin medications or treatment. This is consistent with the Veteran’s previous treatment in September 1989 for pseudofolliculitis barbae (PFB) and being issued a shave profile. There were no suggestions of ear or hearing problems. 

The Veteran’s service records for this period also include a summary of the nature and locations of treatment for various conditions from March 1991 to June 1992, which is consistent with the individual entries in his medical records. There were no documented complaints or diagnoses relating to ear pain or hearing difficulties. 

As noted above, the evidence reflects that the Veteran was released from the Marines in September 1994 due to physical disability for his back after Medical and Physical Evaluation Boards, although the full evaluations are not of record. 

Approximately five years later in August 1999, the Veteran had an enlistment examination for the Army National Guard. In a Report of Medical History, he expressly denied any hearing loss or ear, nose, or throat problems. He also reported an occupation as a corrections officer. The Report of Medical Examination found clinically normal ears. Pure tone thresholds from 500 to 6000 Hertz were 15, 10, 15, 25, 10, and 15 decibels on the right side; and 10, 5, 15, 15, 5, and 15 decibels on the left side. The only noted a defect was elevated blood pressure.

In an April 2000 annual medical certificate for his National Guard service, the Veteran reported that he hurt his back while in the Marines. This is consistent with his medical release due to a back disability in 1994, as well as many treatment records concerning his back problems. The Veteran did not mention hearing loss.

The Veteran’s reports and objective test results in his service records, as summarized above, are highly probative because they were contemporaneous in time to his noise exposure, ear pain, and asserted onset of ongoing noticeable symptoms. It is reasonable to expect that the Veteran would have reported hearing difficulties when he was treated for ear pain or infection in 1985 if it existed at that time because he was being examined for ear problems. As noted above, he did not complain of hearing problems, although this may have been involved in his “stuffy head” complaint. It is also reasonable to expect that the Veteran would have reported hearing difficulties at the time of separation if they were present at that time or during active service. Instead, in 1989 he declined a separation examination in 1989 and a physical profile indicated no hearing (“H”) defect, and in 1994 he was medically separated due to his back. Similarly, it is reasonable to expect that the Veteran would have reported noticing hearing loss at his 1999 National Guard enlistment evaluation if such symptoms had been present at that time. Instead, he expressly denied hearing loss and was noted to have no significant medical problems. Therefore, the absence of a report, and more importantly the express denial of noticeable hearing loss in 1999, more than five years after active duty, weighs against its existence at those times. The objective medical evidence of clinically normal ears in 1999 and hearing tests within normal limits, or with a slight degree of impairment but no VA disability level hearing loss, also contradicts the existence of hearing loss or a disability at that time.

As noted by the August 2020 VA examiner below, the elevated pure tone threshold of 25 decibels at 3000 Hertz in the right ear at the August 1999 National Guard enlistment examination could have shown some degree of hearing loss, although not a disability for VA purposes. Nevertheless, this was almost five years after the Veteran’s September 1994 active duty discharge from the Marines, and more than ten years after the last audiometric evaluation in November 1987, which showed 10 decibels at the 3000 Hertz level in the right ear. The 1987 evaluation also showed pure tones within normal limits of 20 decibels or below at all levels bilaterally, except for 25 decibels at the 500 Hertz level in the left ear and 30 decibels at 500 Hertz in the left ear. However, those readings had decreased or improved to normal levels of 10 decibels and 15 decibels, respectively, in the 1999 examination. Additionally, there was no suggestion of noticeable or diagnosed hearing loss at the time of the Veteran’s separation from Army active duty. 

There is also no argument or indication of hazardous noise exposure during the Veteran’s Marine service through 1994, only in his Army service through 1989. 

These service records are highly probative because they were contemporaneous in time to the Veteran’s noise exposure, ear pain, and asserted onset of noticeable ongoing symptoms. They contradict his reports for his claim in 2012, more than ten years later, of experiencing hearing loss since service that began during service.

The claims file also includes VA treatment records dated since 1994. Although the Veteran sought treatment for many conditions, he did not mention hearing problems for many years, and the first reference to ear problems was in 2001. 

A May 2001 record noted that the Veteran was a boxer with multiple head injuries and was in a motor vehicle accident in May 2000. He reported an episode of leaning to the right, but that his symptoms cleared up with a diagnosis of inner ear or middle ear problem. An August 2002 record noted that he worked full-time as a police officer. Notably, this is consistent with his report at his August 1999 National Guard enlistment examination of being employed as a corrections officer. Similarly, for his disability claim with the Social Security Administration (SSA) in 2018, the Veteran reported working as a police officer from 2000 to 2011. It is common knowledge that police officers generally undergo regular training for firearms, which would involve some degree of noise exposure, despite the Veteran’s denial for his claim of having post-service occupational noise exposure.

A July 2006 VA record noted that for systems review of the ears the Veteran’s tympanic membranes had white light reflex and partially impacted cerumen. The option for hearing loss in the rest of systems review was not checked. The assessment was impacted cerumen, and the Veteran was referred for an audiology consult. An August 2006 audiology consult noted deep impacted cerumen in the bilateral ear canals, which was removed. Tympanic membranes were intact, and there was again no mention of hearing difficulties or finding of hearing loss. 

Instead, the first noted hearing loss complaints or findings were in 2012. In October 2012, the Veteran complained of bilateral decreased hearing, and he was referred for an audiology evaluation. The November 2012 record was noted to be an initial comprehensive audiological evaluation, and the audiogram is also in the file. The Veteran reported constant ringing or tinnitus bilaterally for many years that was worse in the right ear. He also reported pain in the right ear for 7 years (or since approximately 2005) and being unable to sleep on the right side or wear headphones on the right ear. The Veteran reported military noise exposure as a gunner and described difficulty hearing the television, conversations, and on the phone. The provider diagnosed mild cerumen bilaterally, tympanic membranes appeared intact, and there was no lesion noted on the right ear. The provider stated that hearing was within normal limits bilaterally except for mild sensorineural hearing loss at 3000 Hertz in the right ear, and speech thresholds agreed with the pure tones. The audiogram reflects pure tone thresholds of 30 decibels at 3000 Hertz in the right ear, but otherwise 10 to 20 decibels in the right ear. In the left ear, the readings were 15 or 20 decibels through 2000 Hertz and 25 decibels at 3000 Hertz and higher levels. The provider discussed these results with the Veteran, recommended an ENT consult for right ear pain, and discussed tinnitus strategies. 

In February 2013, a problem list noted bilateral sensorineural hearing loss. A March 2013 VA treatment record noted a reported history of hearing loss. 

In February 2014, the Veteran reported progressive hearing loss, left greater than right, and he was again referred for an audiology evaluation. The April 2014 audiology consult record reflects that the Veteran complained of difficulty hearing for many years. Otoscopy showed moderate non-occluding cerumen bilaterally, and some cerumen was removed. As noted above, pure tones met the VA disability criteria at this time and the Veteran was diagnosed with bilateral sensorineural hearing loss on this basis. He was issued VA hearing aids shortly thereafter.

An April 2015 record noted that the Veteran complained that his right hearing “does not work.” Inspection revealed an occluded wax guard for his hearing aid.

The lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). In this case, there were no hearing loss complaints or findings until 2012, despite other VA treatment since 1994. 

The Veteran’s reports for treatment after service are highly probative because he had an incentive to give an accurate history as to the nature and timing of symptoms and exposures to receive proper care. In addition, they were contemporaneous in time to his symptoms and many of them were prior to his VA claim or denial, after which he had an incentive to link the claimed current condition to service. Potential bias may be part of the credibility determination. 

It is reasonable to expect that the Veteran would have reported having hearing difficulties if they existed when he reported other ear problems in 2001, but he did not do so. Instead, he reported non-service related head injuries, accidents, or ear infections. Additionally, it is reasonable to expect that the Veteran would have reported hearing difficulties if they existed when he was treated for ear wax and referred to audiology, but again he did not do so. When he first complained of decreased hearing in 2012, he reported military noise exposure and that he had ringing in the ears or tinnitus for many years, but he did not reference the timing of his hearing loss. He also specified an onset of his ongoing ear pain as being for 7 years, or since approximately 2005, which was more than 10 years after active duty. In February 2014, the Veteran reported progressive hearing loss, and he again did not specify a date of onset or assert that it had been present continuously since service. These notations point toward not having chronic hearing loss since service.

As noted above, the Veteran also reported occupations with potential noise exposure of working as a corrections officer as of 1999 and as a police officer for more than 10 years from 2000 to 2011, as well as having head injuries and motor vehicle accidents unrelated to service. These suggest potential intervening causes.

Moreover, at his June 2019 Board hearing, the Veteran described military noise exposure as a gunner (or in the Army), pain or a burning sensation in his ears, and ringing in the ears or tinnitus that started in service after shooting. He did not specify having hearing problems during or since service. This is generally consistent with the Veteran’s report at his initial comprehensive audiologic evaluation in 2014 of having ringing in the ears and tinnitus for many years, and in 2015 of having progressive hearing loss, as distinguished from continuous hearing loss. It appears that the Veteran may have equated his tinnitus with hearing loss, but these are separate medical conditions. He is already in receipt of service connection for tinnitus, which the Board previously granted on appeal.

In short, evidence in service records and after service is more probative and weighs against the Veteran having chronic hearing loss symptoms or disability in either ear during service or continuously since service. He is not credible in this regard.

Furthermore, to the extent the Veteran believes he has had a hearing loss disability since service, he is not competent to provide this information. To the extent that he may have had temporary hearing difficulties during or shortly after active duty for which he did not seek treatment, the Veteran is not competent to determine that these symptoms were manifestations of chronic disease. Instead, this issue requires specialized medical knowledge of the involved auditory and neurological systems, interpretation of test results, and consideration of his credible medical history.  

Similarly, the criteria for the chronic disease presumption are not met due to the Board’s credibility findings as to the timing of the Veteran’s symptoms. The diagnosed sensorineural hearing loss is considered a listed chronic disease of organic disease of the nervous system. However, this disability was not shown as chronic during service, or manifested to a compensable degree during service or within the applicable presumptive period of one year after active duty discharge, and continuity of symptomatology since service without intervening cause is not established. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). Instead, the most probative evidence shows that the Veteran’s diagnosed disability and noticeable symptoms had an onset more than one year after his September 1994 active duty discharge. For his subsequent National Guard service, the chronic disease presumption does not apply to ACDUTRA periods. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). 

Service connection may still be granted for a current hearing loss disability on a direct basis. However, these criteria also have not been met because the preponderance of the evidence is against finding a nexus between the current hearing loss and in-service injury, event or disease. 38 C.F.R. § 3.303(a), (d).

Specifically, the Veteran is not competent to provide a nexus between his current hearing loss and service on a basis other than continuity of symptomatology. Instead, this question requires medical training to consider and interpret his medical history, including any required tests such as audiometric testing, and specialized medical knowledge of the involved auditory and neurological systems. Thus, the Board gives more probative weight to the competent medical evidence.

In April 2016, a VA examiner opined that the Veteran’s claimed hearing loss was less likely than not incurred in or caused by service. The examiner noted that the Veteran served in the U.S. Army from 1985 to 1989 and in the U.S. Marine Corps from 1991 to 1994, and the Veteran had normal hearing after separation. In particular, the 1999 enlistment examination for National Guard service showed normal hearing bilaterally from 500 to 6000 Hertz, and this was five years after the last active duty discharge in 1994. The examiner stated that this showed no evidence of acoustic trauma or hearing loss in either ear. The examiner cited to the Audiology & Speech Pathology National Program Office Directive 2012-25, stating that if hearing is normal on discharge and there is no permanent significant threshold shift greater than normal measurement variability during military service, then there is no basis upon which to conclude that current hearing loss is causally related to military service, including noise exposure. A negative nexus was given.

The 2016 opinion did not note the presence of a hearing loss disability during the appeal period based on 2014 VA audiogram, which was associated with the Veteran’s claims file after the 2020 Board remand. However, the other factual history is accurate, and the rationale and medical literature cited remains probative. 

The March 2020 VA examiner noted the audiometric results during service but found no permanent positive threshold shift greater than normal variability in either ear. This is consistent with the notations in the Veteran’s service records. The August 2020 VA examiner’s opinion, as summarized below, reflects consideration of the prior VA opinions and other medical records during and after service.

As directed in the 2020 Board remand, an addendum medical opinion was obtained in August 2020 to address the etiology of the Veteran’s hearing loss after additional evidence showed a disability at any point since his November 2012 claim (i.e., in 2014 based on the VA treatment audiogram). This examiner opined that the Veteran’s condition was less likely than not due to service. The rationale reflects consideration of hearing loss, ear pain, and noise exposure during service. 

This examiner acknowledged the Veteran’s hazardous noise during his Army service, as well as the results of audiograms in service records. The May 1985 entrance examination was within normal limits. The examiner stated that a February 1986 audiogram showed some hearing loss at 6000 Hertz in the right ear, with a pure tone of 30 decibels, but this was either a temporary loss or test error because it was not shown on an August 1986 audiometric evaluation. As noted above, these tests were for hearing reference and conservation data. 

The August 2020 examiner found no examination on separation from the Veteran’s first period of active duty (in 1989), or at entrance or separation examination for the Veteran’s second period of active duty (from 1991 to 1994). As noted above, this is generally consistent with the claims file, as no examination was needed or conducted in 1989, the 1991 examination was brief and did not mention hearing, and the 1994 examination was for MEB or PEB based on the back. 

However, the August 2020 examiner stated that the August 1999 hearing examination five years after active duty separation was normal. The examiner acknowledged that this evaluation showed the potential for a threshold shift at 3000 Hertz in the right ear, but stated that the Veteran’s hearing was subsequently normal. This examiner further addressed the Veteran’s treatment for ear pain or otitis media in November 1985. The examiner stated although hearing loss is a symptoms of otitis media, it is almost always temporary and subsides when the infection clears. The examiner again noted normal hearing in 1999. Accordingly, the examiner opined that the current hearing loss was less likely than to related to noise exposure, ear pain, or hearing loss during active service.

The August 2020 examiner did not address the significance of the notation in a May 2001 VA treatment record that the Veteran sustained multiple head injuries from boxing and had an episode of leaning to the right that cleared up after he was diagnosed with an inner ear or middle ear problem, as directed in the prior remand. However, there is no argument or indication that these episodes occurred during active service. Therefore, the absence of rationale discussing this fact is not prejudicial, and the remand directive was substantially completed.

The August 2020 examiner also did not specifically address the April 2014 treatment audiogram results that met the bilateral hearing loss disability criteria. Instead, the examiner noted that the results in March 2020 were normal. As noted above, earlier results when the Veteran sought treatment in November 2012 were also normal, which is consistent with the examiner’s notation of normal results after the noted potential hearing loss or a shift in thresholds during active duty in 1986 and for National Guard enlistment in 1999. Thus, the examiner considered the overall nature and timing of the Veteran’s symptoms, and the rationale that testing after service was normal also reasonably applies to the 2012 results. 

To be adequate, a medical opinion must be based on consideration of an appellant’s prior history and examinations and describe the appellant’s condition in sufficient detail so that the Board’s evaluation of the claim may be fully informed. Stefl  v. Nicholson, 21 Vet. App. 120, 123 (2007). An examiner must support the conclusions given with analysis, but the report must be read as a whole and need not “explicitly lay out the examiner’s journey from facts to a conclusion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The examiner is not required to provide a detailed review of medical history or comment on every piece of favorable evidence in the record. Id.; see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where the medical opinion is lacking in detail, “the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination.” Acevedo, 25 Vet. App. at 294. 

Accordingly, the VA medical opinions are adequate and have high probative value because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data, including application of medical expertise to the facts of this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In particular, the examiners’ rationale is consistent with the Board’s credibility findings concerning the timing of the Veteran’s hearing loss noticeable symptoms and objective disability, and the opinions were not based solely on the lack of a disability during service. Instead, the examiners considered the Veteran’s hazardous noise exposure, complaints and treatment for ear pain during service, post-service tests, and medical literature as applied to this Veteran. There is no indication of reliance on the 2006 Institute of Medicine (IOM) study that contained qualifying or contradictory findings and may not be adequate to support a negative opinion. Cf. McCray v. Wilkie, 31 Vet. App. 243 (2019). 

There is also no argument that the opinions are inadequate or other medical evidence to suggest a link between the Veteran’s current hearing loss and service. The VA opinions are adequate and outweigh the non-competent lay assertions.

In summary, the preponderance of the evidence is against service connection for bilateral hearing loss under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied.

2. Service connection for a right knee disability

The Veteran contends that his right knee disability is due to strenuous activities during service. He describes physical training, running on high impact terrain such as concrete for miles, carrying a heavy backpack, moving in and out of vehicles, squatting, and jumping out of helicopters. He also states that his right knee has bothered him since the 1980s or 1987. See, e.g., November 2012 claim, November 2014 notice of disagreement (NOD), June 2019 Board hearing, March 2020 VA examination. As noted in the 2019 Board remand, a theory of service connection as secondary to the Veteran’s low back disability with sciatica is also raised.

A current disability is shown. A June 2013 VA examination diagnosed right knee chondromalacia. A July 2014 VA treatment record noted right knee enthesopathy shown on bone scan. VA treatment records include x-rays in August 2019 noting left and right knee mild bilateral degenerative changes that had slightly progressed as compared to prior left knee radiographs from May 2003 (but no prior right knee films). However, there was no diagnosis of right knee arthritis or degenerative joint disease, as opposed to any degenerative changes due to chondromalacia. 

Otherwise, the Veteran’s VA treatment records noted symptoms related to radiating pain or sciatic radiculopathy associated with his back disability.

The in-service injury, disease, or event element is also established. Service treatment records reflect that the Veteran was treated in September 1986 for a right knee injury while playing football, which was diagnosed as a knee contusion. In March 1988, the complained that his kneecaps had been hurting for two months and his knees would give out, but the only diagnosis given was for the left knee. 

Although the current disability and in-service elements are met, the nexus element is not established. As explained below in more detail, this claim must be denied because the Veteran’s reports of having continuous right knee symptoms or disability since service are not credible, and the competent evidence does not otherwise establish a relationship to service under any reasonably raised theory of service connection, or alternatively a nexus for secondary service connection.

The Veteran is competent to report experiencing observable right knee difficulties consistently since service. However, his reports of continuity of symptomatology are not credible because they are inconsistent with the Veteran’s express reports and objective evidence in contemporaneous records during and since service. 

Specifically, a Report of Medical Examination for the May 1985 Army enlistment examination, with updates through October 1985, noted defects of a knee surgery and laxity of both knees. A waiver was recommended and granted for these and other noted defects unrelated to his knees. In his 1985 Report of Medical History, the Veteran reported having a trick or locked knee identified as a football knee injury. The physician’s summary noted an injury in 1983 with arthroscopy, and that the Veteran returned to full activity with no current problems. Orthopedic consult records in May 1985 and August 1985 obtained in connection with this enlistment examination reflect that the prior injury and surgery were for the Veteran’s left knee. Those consults also noted laxity in both knees, with slightly more medial laxity in the left knee, and very mild or apparently normal mild laxity in the right knee. Both knees had intact ligaments, full range of motion, and negative x-rays. 

Although the 1985 Report of Medical Examination noted a defect of laxity in the right knee, the orthopedic consult notes appear to reflect that such laxity may have been normal for this Veteran. In contrast to the left knee, he had no identified prior injury, treatment, or surgery to establish a potentially asymptomatic preexisting disability or defect. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that he was presumed sound for the right knee upon entry into service and service incurrence may be considered. See 38 C.F.R. §§ 3.304, 3.306.

The Veteran was treated in September 1986 for a right knee injury while playing football the prior day, stating that he was running and someone ran into him, and he was having constant burning pain. There was no swelling or discoloration, and he had full range of motion with some pain during flexion. The patella was intact, with some pain to the upper right area of the patella. There was no limp, and the assessment was a right knee contusion. 

In March 1988, the Veteran complained that his kneecaps had been hurting for two months, his knees would give out, he could not sit down for extended periods of time, and he had a hard time with stairs, walking, and running. He reported his prior left knee operation, and the only diagnosis given was for the left knee. 

The Veteran complained of left knee pain and swelling at other times, including in January 1986 and again in August 1989 when an x-ray was obtained for the left knee. He also complained of right leg problems related to his back condition with radiating pain or radiculopathy, as well as other lower extremity and orthopedic conditions. However, there were no other documented right knee complaints, treatment, or diagnoses during either active duty period or other service records. 

As noted above, the Veteran declined a separation examination from his Army active duty in August 1989 and was found physically qualified for separation without an examination in October 1989. The PULHES physical profile reflected no defects, including a designation of “1” for “L” for lower extremities. 

As also noted above, the February 1991 examination at entry into active duty for the Marines indicates that all defects found were noted, and there were no subjectively reported problems or objectively recorded conditions other than for a skin condition. There were no suggested right knee problems or diagnoses. 

The Veteran’s service records for this period also include a summary of the nature and locations of treatment for various conditions from March 1991 to June 1992, which is consistent with the individual entries in his medical records. There were no documented complaints or diagnoses relating to right knee pain or diagnoses, although there were notations of treatment for low back complaints. 

As noted above, the evidence reflects that the Veteran was released from the Marines in September 1994 due to physical disability for his back after Medical and Physical Evaluation Boards, although the full evaluations are not of record. Service treatment records in 1993 and 1994 frequently reference low back and lower extremity problems, including a request for an electromyogram/nerve conduction velocity study (EMG/NCV) in January 1994 for chronic low back pain with radicular features to the bilateral lower extremities, right greater than left. 

For his August 1999 enlistment examination for the Army National Guard, the Report of Medical History reflects that the Veteran expressly denied a trick or locked knee, as well as bone, joint, or other deformity, and arthritis, rheumatism, or bursitis. The physician’s summary stated that there were no significant medical problems. He also reported an occupation as a corrections officer. This 1999 Report of Medical Examination found clinically normal lower extremities.

In an April 2000 annual medical certificate for his National Guard service, the Veteran reported that he hurt his back while in the Marines. This is consistent with his medical release due to a back disability in 1994, as well as many treatment records concerning his back problems. The Veteran did not mention his right knee.

The Veteran’s reports and objective diagnoses in his service records, as summarized above, are highly probative because they were contemporaneous in time to his injuries and asserted onset of ongoing noticeable symptoms. It is reasonable to expect that he would have reported right knee symptoms when he sought treatment for other lower extremity or knee conditions if they existed at those times, but he did not make any complaints after 1988. Additionally, as noted above, although the Veteran complained about his “kneecaps,” or both knees, in 1988, there were not abnormalities found or diagnosis given for the right knee at that time, only the left knee. This points against there being a right knee disability. 

It is also reasonable to expect that the Veteran would have reported right knee difficulties at the time of separation if they were present at that time or during active service. Instead, in 1989 he declined a separation examination in 1989 and a physical profile indicated no lower extremity (“L”) defect, and in 1994 he was medically separated due to his back. Similarly, it is reasonable to expect that the Veteran would have reported noticing knee problems at his 1999 National Guard enlistment evaluation if such symptoms had been present at that time. Instead, he expressly denied knee and other relevant joint problems and was noted to have no significant medical problems. Therefore, the absence of a report, and more importantly the express denial of noticeable knee problems in 1999, more than five years after the Veteran’s last active duty in 1994, weighs against the existence of right knee symptoms or disability at those times. The objective medical evidence of clinically normal lower extremities in 1999 also contradicts the existence of right knee symptoms or disability at that time.

These service records are highly probative because they were contemporaneous in time to the Veteran’s injuries and asserted onset of noticeable ongoing symptoms. They contradict his reports for his claim in 2012, more than ten years later, of experiencing ongoing or chronic right knee problems that began during service.

The claims file also includes VA treatment records dated since 1994. Although the Veteran sought treatment for many conditions, he did not mention right knee problems for many years, as opposed to the left knee or lower extremity symptoms related to his back. For example, a May 2003 VA treatment noted aching pain in the left knee, but he denied any further complaints at the present. Left knee x-rays, but not right knee x-rays, were conducted at that time. A July 2006 VA treatment record noted “joint pain” on systems review, but that was identified as elbow pain related to an injury a few months earlier. Physical examination included the lower extremities, which had full range of motion and no abnormalities or notations of any right knee symptoms, although there were identified elbow symptoms. 

The Veteran continued to seek treatment for many orthopedic or musculoskeletal and other conditions. However, the first reference to the right knee was in 2012. 

Specifically, an October 2012 VA treatment noted that the Veteran complained of pain in the right knee, back, and other areas, and he was wearing braces for both knees. In December 2012, the Veteran complained of worsening pain in the right hip and both knees, right greater than left. He denied any recent or old trauma and stated that he felt his symptoms were due to “wear and tear” over the years. 

A January 2013 VA urgent care treatment record noted low back pain radiating into the right leg, and that the Veteran’s low back pain had been present since 1993.

During a June 2013 VA examination, the Veteran identified an onset of his right knee pain three years earlier, or in approximately 2010. He also expressly correlated his right knee problems to “rigorous training and work activities.” Notably, this report was prior to the December 2013 initial denial of his claim due primarily to a finding of no nexus or relationship to his military service.

A January 2015 VA pain clinic record reflects chronic low back pain and knee pain. However, the Veteran specified that his back pain had been present since 1992 or 1993, while his knee pain began approximately two years ago, or in approximately 2013. This record is highly probative because the Veteran distinguished the timing of his back problems as opposed to his knee problems, which were more recent.

VA treatment record records in July 2013, February 2014, and October 2015 noted chronic pain in the back and bilateral hips, knees, and feet. In October 2015 the Veteran stated that this chronic pain had an onset “years ago.” This notation appears to be a generalization of the timing of his pain in multiple areas, and an onset “years ago” could be consistent either with pain beginning in 2010 (as he identified for his right knee during his 2013 VA examination) or during service. 

However, the Veteran may have been thinking of his low back pain radiating to the right lower extremity as involving right knee pain. He has consistently identified his back and lower extremity pain or other sciatica symptoms as being present since the 1990s, which is generally consistent with his service records. For example, a February 2018 VA emergency treatment record for a low back pain flare noted that the Veteran reported low back pain since the Marines years ago. In contrast, the Veteran did not report for VA treatment that his right knee-specific pain or other symptoms had been present since his active military service.

Instead, the Veteran first reported having right knee pain since service during his June 2019 Board hearing, when he asserted that his right knee has bothered him since the 1980s as related to injuries from high-impact activities. Similarly, he asserted during his March 2020 VA examination that his right knee condition began in 1987 as a result of strenuous training and high-impact activities in service. The Veteran did not mention his post-service occupations or activities at those times.

Significantly, prior to his first post-service complaint of right knee pain in 2012 and his identification of the onset of his right knee pain as in 2010 or 2013, the Veteran reported several non-military activities with frequent or strenuous use of his right knee. As noted above, he reported being a corrections officer in his August 1999 service evaluation. VA treatment records in May 2001 and August 2002 reflect that he played football, was a boxer, and was in a motor vehicle accident in May 2000, and he worked full-time as a police officer and had various work injuries. In November 2012, the Veteran similarly reported having worked as a police officer for 15 years until he left in June 2011 for non-physical reasons, which would be since approximately 1996. He also identified past leisure activities of boxing, football, and track, and a planned future activity of boxing. During his June 2013 VA examination, the Veteran correlated his right knee problems, which he identified as beginning three years earlier, to rigorous training and work activities. For his SSA disability claim in 2018, the Veteran reported working as a police officer from 2000 to 2011. In addition to the Veteran’s descriptions during the 2013 VA examination, it is common knowledge that boxers and police officers generally have significant physical capacity requirements with frequent use of the lower extremities. Thus, these suggest potential post-service intervening causes.

The lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson, 581 F.3d at 1316; Maxson, 230 F.3d at 1333; Fagan, 573 F.3d at 1289. In this case, in addition to the service records showing no right knee complaints or clinical abnormalities after 1988, there were no post-service right knee complaints, findings, or diagnoses until October 2012, despite other treatment for the left knee and many other conditions since 1994. 

The Veteran’s reports for treatment after service are highly probative because he had an incentive to give an accurate history as to the nature and timing of symptoms and exposures to receive proper care. In addition, they were contemporaneous in time to his symptoms and many of them were prior to his VA claim or denial, after which he had an incentive to link the claimed current condition to service. Potential bias may be part of the credibility determination. 

It is reasonable to expect that the Veteran would have reported having right knee problems if they existed when he sought treatment for the left knee in 2003, or that he would have been provided x-rays for the right knee at that time if there were potential right knee problems. However, he did not do so. As explained above, although the Veteran reported having pain in both knees, the back, and other areas since “years ago,” he specified a date of onset in approximately 2010 or 2013 when he separated out his right knee complaints. This was many years after his last active duty discharge in 1994 as well as any Reserve or National Guard service. These notations point toward no chronic right knee problems since active service.

In short, evidence in service records and after service is more probative and weighs against the Veteran having chronic right knee symptoms or disability during active service or continuously since service. He is not credible in this regard.

Furthermore, to the extent the Veteran believes he has had a right knee disability since service, he is not competent to provide this information. To the extent that he may have had temporary right knee difficulties during or shortly after active duty for which he did not seek treatment, the Veteran is not competent to determine that these symptoms were manifestations of chronic disease or were separate from neurologic manifestations related to his back disability. Instead, this issue requires specialized medical knowledge of the potentially involved orthopedic or musculoskeletal and neurologic systems, interpretation of objective test results, and consideration of his credible medical history.  

There is no diagnosis of right knee arthritis or other eligible diagnosis for consideration of the chronic disease presumption. Instead, as discussed above, the medical evidence reflects chondromalacia and symptoms related to radiating pain or sciatic radiculopathy associated with the Veteran’s low back disability. Those symptoms are already service-connected and are not eligible for this claim. 

Moreover, to the extent the degenerative changes noted in the 2019 x-rays may constitute arthritis, the criteria for the chronic disease presumption are not met due to the Board’s credibility findings as to the timing of the Veteran’s symptoms. Any arthritis was not shown as chronic during service, or manifested to a compensable degree during service or within the applicable presumptive period of one year after active duty discharge, and continuity of symptomatology since service without intervening cause is not established. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). Instead, the most probative evidence shows that the Veteran’s diagnosed disability and noticeable symptoms had an onset many years after his September 1994 active duty discharge. For his subsequent National Guard service, the chronic disease presumption does not apply to ACDUTRA periods. Smith, 24 Vet. App. at 47. 

Service connection may still be granted for a current right knee disability on a direct basis. However, these criteria also have not been met because the preponderance of the evidence is against finding a nexus between the current right knee disability and in-service injury, event or disease. 38 C.F.R. § 3.303(a), (d).

Specifically, the Veteran is not competent to provide a nexus between his current right knee disability and service on a basis other than continuity of symptomatology. Instead, this question requires medical training to consider and interpret his medical history, including diagnostic tests, and specialized medical knowledge of the involved orthopedic or musculoskeletal system. Thus, the Board gives more probative weight to the competent medical evidence.

A March 2020 VA examiner considered the Veteran’s assertion of right knee problems beginning in 1987 related to strenuous activities in service, as well as his documented treatment for right knee complaints in service as noted above. This examiner opined that the current right knee condition was less likely than not incurred in or caused by service. The examiner explained that the right knee complaint documented on active duty was more likely an acute event without long-term sequelae because there was no sign of continuation of symptomology during or after service. Reading the report as a whole, this rationale reflects consideration of the Veteran’s lay reports of ongoing right knee symptoms since the 1980s, as directed in the 2019 Board remand. Moreover, the Board now finds the Veteran to be not credible as to having had ongoing symptoms since service or since the 1980s, and the examiner’s noted history and timing of symptoms is consistent with this finding. Therefore, the remand directive was at least substantially completed and the opinion is adequate and probative as to direct service connection. 

A September 2020 VA examiner also gave a negative direct nexus opinion and opined that the current right knee disability was less likely than not incurred in service. The rationale was that during service the Veteran’s right knee condition was acute only, with no evidence of chronicity of care or symptoms on active duty or the 1999 entrance examination for the Reserve. Therefore, no direct nexus was established. The examiner’s report reflects consideration of the documented treatment during service in September 1986 for a right knee injury while playing football, as well as in April 1987 and August 1989 for left knee problems, and that the subsequent Reserve examination in 1999 reflected no knee complaints. This rationale is again consistent with the Board’s credibility and factual findings.

Several VA examiners addressed secondary service connection and found no nexus between the Veteran’s right knee disability and his back or lower extremities. 

Specifically, the June 2013 VA examiner opined that the Veteran’s current lumbar range of motion, lower body strength, and gait pattern were too functional to cause or aggravate an inflammatory or degenerative process of his right knee. 

The June 2013 VA examiner’s rationale is not inherently problematic and is further addressed below. However, because the Veteran testified during his June 2019 Board hearing that his back disability had worsened, the Board remanded the case in 2019 to provide a new examination for the back and a new secondary opinion. 

The severity of the Veteran’s low back and lower extremity disabilities since his 2012 claim is addressed below under those issues. However, in brief, the severity was essentially the same throughout the appeal period, to include in June 2013. For example, VA treatment records in October 2015 and November 2015 noted that the Veteran’s gait was slightly antalgic due to low back pain, and he had bilateral knee pain and occasionally needed a cane to stand up. A December 2018 SSA evaluation noted that the Veteran had normal lower extremity strength and a normal gait.  

During the March 2020 VA examination, the Veteran current right knee symptoms of increased sharp, throbbing knee pain and stiffness. This examiner opined that the current right knee condition was less likely caused by his service-connected lumbar spine with bilateral lower extremity radiculopathy. The examiner stated that there is no direct pathophysiologic relationship between the knee condition and the lower back condition, nor are there any records showing such a relationship exists. Similarly, this examiner opined that the current right knee condition was less likely aggravated by the lumbar spine with radiculopathy disability because the lower back has no effect on the lower knee joint, nor is there any pathophysiologic relationship between the two conditions. As noted in the 2020 Board remand, the rationale for these opinions appears to contradict the notation by the 2013 examiner that the Veteran’s back disability was currently too functional to affect his right knee. Therefore, an addendum opinion was requested upon remand to resolve this discrepancy and consider the current severity of the conditions.

Through several reports, the September 2020 VA examiner also gave a negative secondary opinion, stating that the Veteran’s right knee disability was not caused or aggravated beyond its natural progression by his low back or bilateral lower extremity radiculopathy conditions. The rationale was that orthopedic literature did not suggest that an injury to one joint (or the lumbar spine with radiculopathy) would have a significant impact on another or opposite uninjured joint or limb unless the injury resulted in major muscle or nerve damage, causing partial or complete paralysis or shortening of the injured limb to result in length discrepancy of more than 5 cm, such that the gait pattern is altered to an extent that clinically there is an obvious Trendelenburg gait. In this case, the examiner found that the evidence does not reflect that the Veteran has a Trendelenburg gait, so no aggravation is plausible. This is generally consistent with the Board’s review of the evidence as to any altered or abnormal gait, which is discussed further in the analysis for the back and lower extremity ratings. In brief, there were notations of slight antalgic gait or using a brace or cane at times, but no Trendelenburg gait. 

The September 2020 examiner noted the discrepancy between the 2013 examiner’s statement that the Veteran’s low back disability was currently too functional to cause or aggravate an inflammatory or degenerative process of his right knee, and the March 2020 examiner’s statements that there is no direct pathophysiologic relationship between the knee and lower back conditions and the lower back has no effect on the lower knee joint. The September 2020 examiner stated that the “conditions are medically related.” Although this seems to be a positive opinion, it is apparent from the explanation in the report that this was a typographical error and meant to say that the conditions are “not medically related.” The examiner gave the same explanation as for the general secondary opinions and stated that the March 2020 medical opinion was accurate and based on applicable literature. 

As summarized above, the VA medical opinions are adequate and have high probative value because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data, including application of medical expertise to the facts of this case. In particular, the examiners’ rationales are consistent with the Board’s credibility findings as to the timing of the Veteran’s right knee noticeable symptoms and objective disability, and the opinions were not based solely on the lack of a disability during service. Instead, the examiners considered the Veteran’s injuries and treatment during service, post-service tests, and medical literature as applied to this Veteran. The September 2020 examiner’s opinions and rationales, in particular, were highly probative and addressed any potential problematic aspects in earlier opinions.

There is also no argument that the VA opinions are inadequate or other medical evidence to suggest a link between the Veteran’s current right knee disability and service or service-connected disability. In fact, the Veteran testified during his June 2019 Board hearing that his doctors had told him he was “at the age where arthritis sets in.” This suggests that his providers did not give an opinion that the current condition is related to service or secondary to his back disability or lower extremity sciatic radiculopathies. There is also no suggestion of such relationships in the medical records. As noted above, an October 2012 record, when he first complained of right knee problems for VA treatment, noted that the Veteran even felt that his symptoms were due to “wear and tear” over the years. He also had multiple strenuous post-service occupational and leisure activities, as described above. The VA opinions outweigh the non-competent lay assertions.

In summary, the preponderance of the evidence is against service connection for a right knee disability under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied.

3. and 4. Service connection for a left foot disability, to include frostbite residuals; service connection for a right foot disability, to include frostbite residuals

VA received the Veteran’s claims for service connection in November 2012. He contends that he was diagnosed with frostbite in service when he lost feeling in his feet after spending extended periods outside in the cold on the shooting range while in Germany in 1986 or 1987. He states that he has had pain and numbness in his toes since then. In his Board hearing, the Veteran also asserted that his feet were affected by running in combat boots on concrete in service. He stated that he had received VA treatment for nerve damage in the arch of his foot. See, e.g., November 2012 claim, November 2014 NOD, June 2019 Board hearing.

As noted in a prior Board remand, although he identified his claims for the feet as for frostbite residuals, his service records reflect pes planus (flat feet) upon enlistment, and he reported post-service VA treatment for nerve damage in the arch of his feet. Therefore, these claims include all current foot symptoms or diagnoses. 

The medical evidence does not establish a current disability of pes planus (flat feet) or frostbite residuals. Instead, VA treatment records reflect a diagnosis of plantar fasciitis or arch strain in 2013 and 2014, and subsequent problem lists reflect general “foot pain” without a more specific diagnosis. VA examiners also found no diagnosis of frostbite residuals, only right foot strain or pain in March 2020 and bilateral lower extremity radiculopathy in September 2020. As the notations of plantar fasciitis, bilateral arch strain or right foot strain were noted during the appeal period from the November 2012 claim, it establishes a current bilateral foot disability for the purposes of this claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Specifically, in October 2012, the Veteran complained generally of pain in the feet, back, and other areas. VA podiatry treatment records in January 2013 and March 2013 diagnosed plantar fasciitis for complaints of bilateral foot, arch, and heel pain. A June 2013 VA physical therapy record noted the Veteran’s report of a history of minor frostbite on the feet that he believed affected his tolerance to cold, as well as bilateral foot pain, but again diagnosed plantar fasciitis. An April 2014 VA podiatry record noted aching pain in the feet, knees, hips, and other areas. This provider found “moderate height arches” and no foot deformities on examination, X-rays showed no significant abnormality (NSA), and the diagnosis was arch strain. VA problem lists since August 2015 generally noted “foot pain” with no foot-specific diagnosis. A March 2020 VA treatment record noted the Veteran’s report of problems due to frostbite during service, but this was only a documentation of the Veteran’s lay report, not a medical diagnosis as to frostbite.

VA examiners in March 2020 and September 2020 also found no pathology to diagnose chronic frostbite residuals in the feet. The March 2020 examiner noted the Veteran’s reported current symptoms of a constant ache, pain, numbness, and cold sensitivity in the feet, and found right foot pain on examination that affected his ability to perform occupational tasks, and noted a diagnosis of right foot strain, although no pain or other left foot diagnosis was found. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (holding that pain that results in functional impairment of earning capacity may establish a disability without an underlying diagnosis). This examiner found no signs or symptoms or pathology in either foot to diagnose frostbite residuals, but also diagnosed right foot neuropathy. 

The September 2020 VA examiner also found no diagnosis of chronic frostbite. This examiner stated that the Veteran’s current neurologic symptoms on Disability Benefit Questionnaires (DBQs, or VA examinations) were entirely due to the bilateral lower extremity radiculopathies which are already service-connected as secondary to his service-connected lumbar spine or low back disability.

The VA examiners did not diagnose or address plantar fasciitis, although they addressed neuropathy or radiculopathy and foot or arch strain. However, there is no prejudice to the Veteran and no need for a medical opinion to address the etiology of the plantar fasciitis noted in 2013 treatment records because there is no indication that this current condition may be related to service when considering the competent and credible evidence of record. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010). Instead, as discussed in further detail below, the Veteran identified an onset of symptoms several years after service, he had no complaints for the feet in service other than as related to his back disability, he had many activities after service involving frequent and strenuous use of the feet as potential intervening causes, and medical providers advised him as to stretching and proper use of footwear for the condition. There is no medical suggestion that plantar fasciitis may be related to any potential cold exposure or frostbite during in 1986 or 1987 or potential temporary foot symptoms related to running in combat boots during service. Id.

Having found a current disability to the extent discussed above, the Board now turns to the remaining elements of service connection. Because the Veteran’s 1985 enlistment examination noted a defect or disease of mild pes planus (or flat feet), he is not presumed sound and may only bring a claim for aggravation of this diagnosed preexisting foot condition. This is true even though the condition was asymptomatic at the time, with the Veteran denying noticeable foot complaints. See 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306; Verdon v. Brown, 8 Vet. App. 529, 535 (1996); Smith v. Shinseki, 24 Vet. App. 40 (2010). 

As explained above, there is no current diagnosis of pes planus (flat feet). However, the Board will consider this theory to the extent it may be related to the diagnosed plantar fasciitis that also involves complaints as to the arches of the feet.

The Veteran has the burden to show an increase of severity in service to trigger the presumption of aggravation, and VA may rebut that presumption by clear and unmistakable evidence, including that the increase was due to natural progress of the condition. Horn v. Shinseki, 25 Vet. App. 231 (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to constitute aggravation unless the underlying condition, as distinguished from the symptoms, worsened. The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Similarly, where a noted preexisting condition was asymptomatic at entry, an exacerbation of symptoms in service does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991).

Concerning the in-service element and any potential increase to trigger a presumption of aggravation in service, the Veteran’s reports of running in combat boots on concrete are competent and consistent with the general circumstances of his service to establish a potential generalized injury or pain from impact. However, this not sufficient to show more than a temporary exacerbation. 

Service personnel records also confirm that the Veteran served in Germany from February 1986 to February 1988. Although he is competent to report being exposed to cold weather during such service, there is no documented diagnosis or treatment for frostbite or cold injury in his service records. This directly contradicts his assertion years later for his VA claim of being diagnosed with frostbite in service. To the extent that the Veteran’s report of being treated by a medic asserts that such treatment was not documented, other evidence in service records also contradicts the existence of frostbite or ongoing foot symptoms related to cold injury. Moreover, there is no suggestion that any such injury or complaints affected the Veteran’s arches or flat feet to result any lasting increase to a pes planus disability. 

As explained below in more detail, claims for a bilateral foot disability must be denied because the Veteran’s reports of having continuous bilateral foot symptoms or disability since service are not credible, and the competent evidence does not otherwise establish a relationship to service under any reasonably raised theory.

The Veteran is competent to report experiencing observable foot difficulties consistently since service. However, his reports of continuity of symptomatology since frostbite in 1986 or 1987, or as related to running throughout service, are not credible because they are inconsistent with the Veteran’s express reports and objective evidence in contemporaneous records during and since service. 

Specifically, after the Veteran’s 1985 enlistment examination, there is no treatment or diagnosis in service for left or right foot complaints, frostbite, or cold injury during his first period of active duty. As noted above, the Veteran declined a separation examination from his Army active duty in August 1989 and was found physically qualified for separation without an examination in October 1989. The PULHES physical profile reflected no defects, including a designation of “1” for “L” for lower extremities, which would include the feet.  

As also noted above, the February 1991 examination at entry into active duty for the Marines indicates that all defects found were noted, and there were no subjectively reported problems or objectively recorded conditions other than for a skin condition. There were no suggested bilateral foot problems or diagnoses. 

In addition, service treatment records during this period of active duty reflect that the Veteran was treated bilateral foot complaints related to his low back disability and associated lower extremity difficulties. In June 1992, he was treated for low back pain and increased tingling at the L4-S1 dermatomes in the left calf and foot, with a provisional diagnosis of herniated nucleus pulposus. In July 1993, September 1993, and January 1994, the Veteran was treated for low back pain with radiating pain, numbness, and/or decreased touch in the right foot or toes that was also attributed to his back condition. A January 1994 record also noted low back chronic low back pain with radicular features to the bilateral lower extremities. He was medically discharged from the Marines in September 1994 due to his back.

Approximately three months later, a December 1994 VA mental disorder and neurological examination reflects that the Veteran reported being medically discharged due to his back after an incident in about June 1992 where he got out of bed and collapsed because his left leg gave way. This is generally consistent with the notations in his service records, as summarized above. In December 1994, the Veteran reported that he still had a lot of discomfort in his back and numbness, tingling, and weakness in the left leg, as well as no feeling in three toes on his right foot. The examiner observed that the Veteran limped on his left leg when walking. The December 1994 examiner gave a diagnosis of “low back syndrome.”

In his August 1999 Army National Guard enlistment examination, the Veteran expressly denied any foot trouble or nerve injury in his Report of Medical History. In the Report of Medical Examination, no clinical abnormalities were identified for the feet, and the only defect noted was elevated blood pressure. This reflects that no pes planus was detected, which points against any lasting increase since 1985. 

In an April 2000 annual medical certificate for his National Guard service, the Veteran reported that he hurt his back while in the Marines. This is consistent with his medical release in 1994, as well as many treatment records concerning his back problems and associated lower extremity difficulties, including as noted in December 1994. The Veteran did not mention any foot-specific problems.

The Veteran’s reports and objective diagnoses in his service records, as summarized above, are highly probative because they were contemporaneous in time to his asserted injuries and onset of ongoing noticeable symptoms. It is reasonable to expect that if he had symptoms that had been present since any cold injury or frostbite in 1986 or 1987, he would have reported the nature or timing of such symptoms at those times when he reported other bilateral foot symptoms. Instead, the Veteran described symptoms radiating from his back or that were attributed to his lumbar spine disability. The Veteran did not mention any difficulties related to cold exposure, and there was no foot-specific diagnosis, to include frostbite or cold injury residuals, pes planus, or plantar fasciitis. 

It is also reasonable to expect that the Veteran would have reported foot difficulties at the time of separation if they were present at that time or during active service. Instead, in 1989 he declined a separation examination in 1989 and a physical profile indicated no lower extremity (“L”) defect, and in 1994 he was medically separated due to his back. Similarly, it is reasonable to expect that the Veteran would have reported noticing foot problems at his 1999 National Guard enlistment evaluation if such symptoms had been present at that time. Instead, he expressly denied foot problems and nerve problems, which he now asserts are associated with frostbite, and he was noted to have no significant medical problems. Therefore, the absence of a report, and more importantly the express denial of noticeable foot problems in 1999, more than five years after the Veteran’s last active duty in 1994, weighs against the existence of foot symptoms or a specific disability other than lumbar radiculopathy at those times. The objective medical evidence of clinically normal feet in 1999 also contradicts the existence of bilateral foot symptoms or disability, to include a lasting increase from the preexisting mild pes planus, at that time.

These service records are highly probative because they were contemporaneous in time to the Veteran’s injuries and asserted onset of noticeable ongoing symptoms. They contradict his reports for his claim in 2012, more than ten years later, of experiencing ongoing or chronic foot problems (other than related to his bilateral lower extremity sciatic nerve radiculopathy) that began during service.

The claims file also includes VA treatment records dated since 1994. Although the Veteran sought treatment for many conditions, he did not mention foot problems until 2012, as opposed to lower extremity symptoms related to his back disability. 

Specifically, as noted above, October 2012, the Veteran complained generally of pain in the feet, back, and other areas. In a January 2013 podiatry consult, he reported having pain in the bilateral feet, arches, and heels that had been present for seven years (or since approximately 2006). The Veteran reported having frostbite in the feet during service, as well as pain from walking in boots in service for nine years (which appears to refer primarily to his active duty periods from 1985 to 1989 and 1991 to 1994). The Veteran stated that he used inserts for his feet during service that he purchased over the counter, but they did not work and the condition worsened over time with no overt trauma. The provider found foot deformities of low arches, pain on palpation of the bilateral plantar medial tubercle and pain in the plantar fascia with spasm, decreased ankle dorsiflexion bilaterally, and intact neurologic evaluation. The provider diagnosed plantar fasciitis and ankle equinus bilaterally. The provider ordered treatment of orthotic inserts and advised the Veteran as to the etiology and treatment of plantar fasciitis, including stretching, slowly easing back into activities, and wearing shoes in the house at all times. The provider did not specify a relationship to activities or injuries in service. 

In a March 2013 podiatry followup record, the Veteran reported that his foot pain had not improved, and he was wearing his orthotics or supports in his boots but not his sneakers. He also reported that he was doing his recommended stretching but did not have a schedule, and he was training as a boxer. The Veteran reported a similar history otherwise as in January 2013, and physical examination was similar, including a diagnosis of plantar fasciitis. The provider gave the Veteran education on shoe wear and specified that he needed to tie his shoes because the toe and heel imprints on the insoles showed that they were slipping in his shoes from not being laced. The provider explained that this puts medial and lateral pressure on the metatarsals and overworks the intrinsic muscles of the feet by having to grip the shoe. The Veteran was advised to continue stretching and use orthotics in all shoes.

A June 2013 VA physical therapy record again noted the Veteran’s report of a history of minor frostbite of the feet that he believed affected his tolerance to cold, as well as a “long history” of bilateral foot pain. The Veteran denied any specific onset or trauma, but he stated that his pain was more infrequent in past and now was more constant and equal bilaterally. His symptoms were increased with prolonged standing and walking, and he had stopped using orthotics because they did not seem to help. The Veteran stated that he trains as a boxer and was often performing a significant amount of physical activity, including jumping rope. He had pain with those activities but had learned to deal with it. The Veteran stated that he believed his history of frostbite caused his joints to tighten up with cold temperatures, so he did not use heat or cold for treatment. Examination included findings of intact neurologic evaluation in the lower extremities and full motor strength (5/5) of the ankles, and the assessment was again bilateral chronic heel pain with plantar fasciitis. The Veteran ambulated without a limp, but he accepted a cane for times of increased pain and to attempt to decrease the stress on his feet.

An April 2014 VA podiatry record noted a report of generalized aching pain in the feet, knees, hips, and other areas “for many years” that limited his ability to walk and prolonged standing. X-rays were taken and the provider stated that they showed no significant abnormality (NSA). This provider found “moderate height arches” and no foot deformities on examination and diagnosed arch strain. A consult was placed to prosthetics for custom orthotics and arch supports.

In an October 2015 VA treatment record, the Veteran again reported chronic pain in his back, hips, knees, and feet with an onset “years ago.”

These notations as to the date of onset of the Veteran’s pain appears to be a generalization of the timing of his pain in multiple areas. An onset of “many years” or “years ago” could be consistent either with pain beginning in 2006 (as he identified for his initial podiatry consult in January 2013) or during service.

Additionally, the March 2020 VA examination noted the Veteran’s reported onset of numbness and cold sensitivity in the feet in 1993. Notably, this would have been several years after his asserted frostbite in 1986 or 1987, so it contradicts the Veteran’s other assertions for his claim. However, an onset in 1993 would have been after his initial episode of back pain around 1992, with subsequent frequent treatment for lower extremity symptoms including the pain, numbness, or tingling in the left and right foot or toes that were attributed to his lumbar spine disability. Similarly, a January 2013 VA treatment record noted low back pain radiating into the right leg, and that the Veteran’s low back pain had been present since 1993.

Accordingly, the Veteran may have been thinking of his low back pain radiating to his lower extremities as involving foot pain and other symptoms. He has consistently identified his back and lower extremity pain or other sciatica symptoms as being present since the 1990s, which is generally consistent with his service records. Although the Veteran reported for treatment that he believed his symptoms were related to frostbite or running in boots in service, the providers consistently diagnosed plantar fasciitis, strain, or lower extremity problems related to his back disability, not frostbite residuals. Except for in the March 2020 VA examination when he reported an onset in 1993, the Veteran identified an onset of his foot-specific complaints in approximately 2006 in his January 2013 treatment.

Significantly, the Veteran did not report his post-service occupations or activities in his initial podiatry consult in January 2013, which was shortly after his claim for VA benefits in November 2012. However, the provider did note that the Veteran should limit his current activities and slowly easy back into them. The Veteran then reported in subsequent follow-up sessions that he was training as a boxer, that involved strenuous physical activity with high impact to the feet, including jumping rope. The Veteran had also previously reported non-military activities with frequent or strenuous use of the feet when he sought treatment for other conditions. As noted above, he reported being a corrections officer in his August 1999 service evaluation. VA treatment records in May 2001 and August 2002 reflect that he played football, was a boxer, and worked full-time as a police officer. In November 2012, the Veteran similarly reported having worked as a police officer for 15 years until he left in June 2011 for non-physical reasons, which would be since approximately 1996. He also identified past leisure activities of boxing, football, and track. During a June 2013 VA examination, the Veteran reported having right knee pain for three years related to rigorous training and work activities. For his SSA disability claim in 2018, the Veteran reported working as a police officer from 2000 to 2011. In addition to the Veteran’s descriptions during the 2013 treatment records and VA examination, it is common knowledge that boxers and police officers generally have significant physical capacity requirements with frequent use of the feet. Thus, these suggest potential post-service intervening causes.

The lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson, 581 F.3d at 1316; Maxson, 230 F.3d at 1333; Fagan, 573 F.3d at 1289. In this case, in addition to the service records showing no foot-specific complaints or clinical abnormalities other than as related to the Veteran’s low back disability, there were no post-service foot complaints, findings, or diagnoses until October 2012, despite other treatment since 1994. 

The Veteran’s reports for treatment after service are highly probative because he had an incentive to give an accurate history as to the nature and timing of symptoms and exposures to receive proper care. In addition, they were contemporaneous in time to his symptoms and his report of symptoms beginning in 2006 was prior to the initial denial of these issues in a December 2013 rating decision, after which he had an incentive to link the claimed current condition to service. Potential bias may be part of the credibility determination. 

As explained above, although the Veteran reported having pain in both feet, the back, and other areas since “years ago,” he specified a date of onset in approximately 2006 when he sought podiatry treatment in 2013, and in 1993 or around the time his low back problems began in service for his first VA examination in 2020 for the bilateral foot condition. These notations point toward no chronic foot problems other than as related to the back since active service.

In short, evidence in service records and after service is more probative and weighs against the Veteran having chronic foot-specific symptoms or disability during active service or continuously since service, or any increase (as opposed to temporary exacerbations) in his preexisting pes planus during active service. He is not credible in this regard, and the presumption of aggravation is not triggered.

Furthermore, to the extent the Veteran believes he has had a separate foot disability since service, he is not competent to provide this information. To the extent that he may have had temporary bilateral foot difficulties related to frostbite or cold injury in 1986 or 1987 or pain or other symptoms while running during service for which he did not seek treatment, the Veteran is not competent to determine that these symptoms were manifestations of chronic disease or were separate from neurologic manifestations related to his back disability. Instead, this issue requires specialized medical knowledge of the potentially involved orthopedic or musculoskeletal and neurologic systems, interpretation of objective test results, and consideration of his credible medical history.  

There is no diagnosis of arthritis or organic disease of the nervous system in either foot for consideration of the chronic disease presumption. Instead, as discussed above, any neurologic symptoms have been medically attributed to sciatic radiculopathy associated with the Veteran’s low back disability. Those symptoms are already service-connected and are not eligible for these claims.

Service connection may still be granted for a current bilateral foot disability on a direct basis. However, these criteria also have not been met because the preponderance of the evidence is against finding a nexus between the current disability and in-service injury, event or disease. 38 C.F.R. § 3.303(a), (d).

Specifically, the Veteran is not competent to provide a nexus between his current bilateral foot disability and service on a basis other than continuity of symptomatology. Instead, this question requires medical training to consider and interpret his medical history, including diagnostic tests, and specialized medical knowledge of the involved orthopedic or musculoskeletal and neurologic systems. Thus, the Board gives more probative weight to the competent medical evidence.

As noted above, the March 2020 VA examiner noted the Veteran’s report of numbness and cold sensitivity in the feet with an onset in 1993, and current symptoms of a constant ache, pain, numbness, and cold sensitivity. He stated that his right foot had flare-ups precipitated by cold weather or prolonged standing and walking. There was objective evidence of right foot pain, and the examiner noted right foot strain, but there was no pain on examination or a diagnosis given for the left foot. Both the foot injury and frostbite examination reports found no signs or symptoms or pathology to diagnose frostbite residuals. Thus, the foot injury report gave negative direct and secondary nexus opinions as to this claimed condition. 

The March 2020 VA foot injury examination report also stated that there was a current diagnosis of right foot neuropathy and opined that this condition was at least as likely as not incurred in or caused by the Veteran’s complaints and treatment for right toe numbness during service. The examiner also stated that the Veteran’s current right foot neuropathy was less likely than not aggravated by his service-connected lumbar spine with radiculopathy disability for secondary service connection because the low back has no effect on the lower toe, nor are there any pathophysiologic relationship between the two conditions. However, the rationale for these opinions does not appear to consider the notation in the Veteran’s service records of treatment for left foot and right foot or toe numbness associated with his low back complaints during service from 1992 to 1994, as summarized above. 

Therefore, an addendum opinion was obtained, as directed by the 2020 Board remand. In several reports, a September 2020 VA examiner noted treatment during service for low back pain and radiculopathy, as well as the Veteran’s denial of foot complaints in his August 1999 service examination, along with general review of other records in the claims file. The examiner opined that the Veteran’s current foot condition was less likely than not incurred in or caused by service. The rationale was that there was no chronic diagnosis for bilateral frostbite, service treatment records showed no chronic condition of frostbite, and active duty complaints were clearly linked to radiculopathy on record review. The Veteran’s lay reports of frostbite were not support by the records, and no nexus was established. 

For secondary service connection, the September 2020 VA examiner opined that the current claimed bilateral foot condition was less likely than not caused or aggravated by the Veteran’s service-connected back disability or bilateral lower extremity sciatic radiculopathies. The examiner again explained that there was no chronic diagnosis for bilateral frostbite, and stated that neurologic symptoms on Disability Benefit Questionnaires (DBQs, or VA examinations) were entirely due to the lower extremity radiculopathies. The examiner further stated that he had reviewed the conflicting evidence, which was directed in the prior Board remand concerning the March 2020 opinion on neuropathy. The September 2020 examiner stated that there was no chronic diagnosis for bilateral frostbite, and no aggravation or causal nexus can be established. The examiner explained that the Veteran’s radiculopathy with associated neurologic symptoms is due to his service-connected back condition, and these radiculopathies are also service-connected.

The March 2020 and September 2020 VA examiners did not express an opinion as to aggravation of the Veteran’s preexisting pes planus, to include any potential relationship to the plantar fasciitis diagnosis noted in 2013 and 2014. However, because the Veteran did not meet his burden of triggering the presumption of aggravation during service as explained above, the burden to rebut that presumption does not shift back to VA and no such opinion is needed. See Horn, 25 Vet. App. at 235; Wagner, 370 F.3d at 1095-96. As also noted above, there is no other indication that plantar fasciitis may be related to service, other than the Veteran’s broad conclusory complaints that his current condition is related to service, which are not competent or sufficient to trigger the need for an opinion. Therefore, there is no prejudice and the 2020 Board remand directive to address aggravation of preexisting pes planus if there is a current pes planus disability was at least substantially completed. No further remand or medical opinion is needed.

As summarized above, the VA medical opinions are adequate and have high probative value because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data, including application of medical expertise to the facts of this case. In particular, the examiners’ rationales are consistent with the Board’s credibility findings as to the timing of the Veteran’s bilateral foot noticeable symptoms and objective disability, and the opinions were not based solely on the lack of a disability during service. Instead, the examiners considered the Veteran’s injuries and treatment during service, post-service tests, and medical literature as applied to this Veteran. The September 2020 examiner’s opinions and rationales, in particular, were highly probative and addressed any potential problematic aspects in earlier opinions. The remand directives were at least substantially completed for these issues, and the opinions are adequate and probative as to direct and secondary service connection. 

There is also no argument that the VA opinions are inadequate or other medical evidence to suggest a link between a current bilateral foot disability and service or service-connected disability. As noted above, VA treatment records advised the Veteran on stretching, wearing his shoes properly laced up, and limiting activities; and he had multiple strenuous post-service occupational and leisure activities, as described above. The VA opinions outweigh the non-competent lay assertions.

In summary, the preponderance of the evidence is against service connection for a bilateral foot disability under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeals are denied.

Disability Ratings

5., 6., 7, and 8. Increased rating for a lumbar spine disability in excess of 20 percent; earlier and increased initial rating for left lower extremity lumbar radiculopathy in excess of 20 percent; increased initial rating for right lower extremity lumbar radiculopathy in excess of 20 percent 

VA received the Veteran’s claim for an increased rating for his lumbar spine or low back disability in November 2012, and he was granted separate ratings for associated left and right lower extremity radiculopathies during his appeal. He seeks higher ratings due to pain and other symptoms and resulting impairment.

VA’s schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flare-ups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). For either situation, staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires treatment and bed rest prescribed by a physician. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237 & 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). 

VA recently amended the regulations for rating spinal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, & 5244). As relevant to this case, these changes result in distinctions between IVDS (still rated under DC 5243 as an alternative to the General Rating Formula as summarized above) and degenerative disc disease other than IVDS (now rated under DC 5242 but not DC 5243). Because there were medical notations of IVDS in this case, the applicable analysis remains the same under both sets of rating criteria, and neither set is more favorable to the Veteran. The addition of DC 5244 is for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case.

Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher rating for the thoracolumbar spine of 40 percent requires forward flexion limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine (including the cervical spine). 38 C.F.R. § 4.71a. 

The prior remand directives have been at least substantially completed, and there is no argument or indication of any relevant outstanding records that would have a reasonable possibility of substantiating the claims. The 2019 remand was for a new VA examination to determine the current severity, which was provided in March 2020, and the 2020 remand was to readjudicate the claims with any new evidence. 

The Veteran has been service-connected for his lumbar spine disability, rated 20 percent disabling under DC 5299-5237, effective since 1994. A November 2013 rating decision denied an increase, but there are now ratings for radiculopathy.

Throughout the appeal period, the Veteran’s low back disability has manifested by varying degrees of back pain, tenderness, muscle spasms, and painful or limited motion at times, as well as shooting pain and radiating pain down the lower extremities. The Veteran described frequent aggravation of pain from activities such as bending (or forward flexion), prolonged walking or standing, bending, twisting, and lifting or carrying during flare-ups or repeated use over time. VA examiners noted that he had functional loss as described. The Veteran sought urgent care or emergency treatment at times for increased symptoms or flare-ups and he reported using a cane or brace at times. VA examiners noted pain on active and passive range of motion and weightbearing and non-weightbearing at times. The Veteran continued to work full-time despite back and lower extremity symptoms and resulting impairments. See, e.g., November 2014 NOD; June 2019 Board hearing; VA examinations in June 2013 and March 2020; VA treatment records in November 2012, January 2013, July 2013, March 2016, January 2017, March 2017, February 2018, October 2018, May 2019, June 2020; SSA records and evaluation in 2018.

The June 2013 VA examiner measured forward flexion limited to 80 degrees. There was no change after repetitive testing, and the examiner found no additional significant limitation with flare-ups or repeated use over time and no work impact. A December 2018 SSA evaluation noted limited lumbar spine range of motion including forward flexion to 70 degrees. The March 2020 VA examiner measured the Veteran’s forward flexion of the thoracolumbar spine to 60 degrees, but found additional limitation to 55 degrees of forward flexion after repetitive testing. This examiner also estimated an additional loss of forward flexion to 50 degrees after repeated use over time and 45 degrees during flare-ups, and noted a work impact of limitation of motion and activities as described by the Veteran during flare-ups or after repeated use. 

These measurements and estimates of additional loss are generally consistent with the Veteran’s reports of increased noticeable pain and limitations at times, including difficulty bending (or forward flexion), throughout the appeal period. For example, in his November 2014 NOD, the Veteran described needing to walk “bent over” most of the day during flare-ups due to pain and locking. Similarly, an October 2015 VA treatment record noted the Veteran’s report that his back “went out” three times since August and felt locked, with difficulty walking. He had unspecified limitation of motion. During his June 2019 Board hearing, the Veteran again reported that his back sometimes “locks up” and he needs to sit down because he gets “stuck” in that position. He also stated that sitting in a chair wasn’t good for his back, and he needed to stand up every 10 to 15 minutes; sitting in a chair actually requires bending or forward flexion of the spine. The Veteran felt like his range of motion such as the ability to bend over was more limited, and he avoided bending over due to pain. The Veteran’s reports of “locking up” or getting “stuck” in a position suggest an inability to straighten (or extend) his back, not further limitation of forward flexion. He was provided another VA examination after the 2019 Board hearing where he described additional problems bending over (or forward flexion), and the 2020 examiner did measure more limited forward flexion than previously, as well as gave estimates of additional loss during flare-ups or after repeated use. Accordingly, the additional limitations during increased periods of symptoms are still contemplated by the assigned 20 percent rating under the General Rating Formula. There is no suggestion of limitation of forward flexion to 30 degrees or less, even with increased symptoms, for a higher rating. 

VA treatment records noted unspecified limitation of motion when the Veteran sought treatment for low back pain flare-ups. Although the evidence reflects use of medications, steroid injections, physical therapy, and other treatments for the Veteran’s pain in the back and other areas, he generally indicated that these efforts did not alleviate his pain. Physical therapy actually worsened his pain and other symptoms at times. Instead, his symptoms are alleviated somewhat by rest and laying down. See, e.g., November 2014 NOD; June 2019 Board hearing; October 2015 and March 2017 VA treatment records; 2013 and 2020 VA examinations. Accordingly, the ameliorative effects of medications do not significantly affect the measured ranges of motion or other manifestations to result in a higher degree of limitation or warrant a higher rating when not considering such effects.

There is no argument or indication that the Veteran’s back disability increased in severity since the last VA examination in March 2020, or that the findings and estimates in that examination were inadequate. A June 2020 VA treatment record noted stable back pain. There is also no suggestion of favorable or unfavorable ankylosis of any portion of the spine at any point to warrant a 40, 50, or 100 percent rating. VA examiners consistently found no ankylosis, and there was range of motion despite pain. Thus, a higher rating than 20 percent is not warranted.

Turning to the Veteran’s neurologic manifestations, the November 2013 rating decision granted service connection for right lower extremity radiculopathy, rated 20 percent disabling, effective since November 13, 2012. An April 2020 rating decision granted service connection for left lower extremity lumbar radiculopathy, rated 20 percent disabling, effective since October 3, 2019. In his November 2014 NOD and during his June 2019 hearing, the Veteran complained of symptoms in his back and in both lower extremities, primarily the hips. The Board will consider whether a higher or earlier rating is warranted during the appeal period.

Under DC 8520, complete paralysis of the sciatic nerve is assigned an 80 percent rating, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. Lower ratings of 10, 20, 40, or 60 percent are assigned for mild, moderate, moderately severe, or severe incomplete paralysis, respectively. Neuralgia of the sciatic nerve is rated using the same criteria under DC 8720. 38 C.F.R. § 4.124a.

The terms “mild,” “moderate,” and “severe” are not defined in the diagnostic codes. However, the term “incomplete paralysis” for peripheral nerve injuries indicates a degree of lost or impaired function substantially less that the type pictured for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, introduction prior to DC 8510. Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis not characterized by these organic changes will be moderate, or moderately severe if there is sciatic involvement, incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, will be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. 

Resolving reasonable doubt int the Veteran’s favor, the lay and medical evidence support a factually ascertainable increase and compensable left lower extremity radiculopathy as of a July 9, 2013, VA urgent care treatment record that noted severe back pain radiating to the hips, knees, and legs, rated as 8-9 out of 10. See 38 C.F.R. § 3.400. However, there was no more than moderate incomplete paralysis of the sciatic nerve for either lower extremity during the appeal period. 

The April 2020 rating decision that granted a separate 20 percent rating for left lower extremity radiculopathy applied an effective date of October 3, 2019, based on a date of claim of an intent to file for service connection for this condition. However, the rating decision noted that this issue was ancillary to the issue on appeal of entitlement to an increased rating for the low back. There was no specific lay or medical evidence as of October 3, 2019, to establish the disability severity. Instead, the decision reflects consideration of the March 2020 VA examination. 

However, from July 9, 2013, forward, the Veteran reported essentially the same recurring nature and severity of symptoms as noted in the March 2020 VA examination, which was the basis for the 20 percent award as of 2019. To maintain consistency and resolve reasonable doubt in the Veteran’s favor, the Boards finds that a 20 percent rating is also warranted for the left lower extremity as associated with the low back disability, effective from July 9, 2013. During the appeal period prior to that date, the evidence reflects only right lower extremity symptoms.

Specifically, during the March 2020 VA examination, the Veteran reported moderate daily back flare-ups that lasted all day. Findings showed a positive straight leg raise (SLR) test bilaterally, but the Veteran had normal or full muscle strength (5/5) and reflexes (2+) at the knee and ankle. Sensory testing for sensation to light touch was normal to the upper anterior thigh and the thigh/knee, but decreased at the lower leg/ankle and foot/toes bilaterally. Based on the Veteran’s reported observable symptoms, the examiner noted signs and symptoms due to radiculopathy for both lower extremities of moderate constant pain that may be excruciating at times, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner stated that there was incomplete paralysis of the sciatic nerve for both lower extremities, and the overall impairment was moderate.

A November 2013 rating decision awarded a 20 percent rating for right lower extremity radiculopathy, effective since the date of receipt of his November 13, 2012, claim for a low back increase, based in part on a June 2013 VA examination. 

A December 2012 VA treatment record noted worsening pain in the right hip, and treatment records in January 2013 noted low back pain radiating into the right leg and pain on right SLR (or a positive SLR finding), for which he was prescribed Flexeril. A June 2013 treatment record then noted neurologically intact sensation in the lower extremities and full ankle strength of 5/5 upon physical examination.

During the June 2013 VA examination, SLR testing was negative, and muscle strength, reflexes, and sensory testing were all normal. Based on the Veteran’s reported observable symptoms, the examiner noted signs and symptoms due to radiculopathy for only the right lower extremity of moderate intermittent pain, but no constant pain; as well as moderate paresthesias and/or dysesthesias and moderate numbness. There were no identified signs or symptoms of radiculopathy for the left lower extremity. The examiner stated that there was incomplete paralysis of the sciatic nerve for the right lower extremity only with moderate overall impairment, and no affected nerve in the left lower extremity. Notably, this evidence was found to support a moderate severity rating despite the negative SLR testing and objectively normal neurologic testing, as well as no constant pain, in contrast to the Veteran’s recorded symptoms in the March 2020 VA examination.

A July 9, 2013, VA treatment record noted severe back and hip pain that radiated to the legs and knees, rated as 8-9 out of 10. The Veteran stated that this pain had been present “for many years.” An April 2014 podiatry consult also noted pain in the hips, along with the feet, knees, and upper extremity areas “for many years.” However, these reports of longstanding pain in the back and both hips (and other areas in the body) appear to be generalized for several areas, and they are inconsistent with the previous notations of only back and right-sided symptoms. 

Additionally, the Veteran specified in a January 2015 VA treatment record that he had been having pain in the low back since 1992 or 1993, but his bilateral hip and knee pain began approximately two years ago, which would be in 2013. Similarly, a February 2016 record noted that Veteran reported low back pain with bilateral hip and thigh pain for the “past several years.” This would be more consistent with pain beginning in approximately 2013 than being present for a much longer period. 

The reports where the Veteran separated out his hips or lower extremity symptoms onset dates are more probative, as they are more specific and contemporaneous. Accordingly, the most probative evidence reflects ongoing left lower extremity symptoms beginning on July 9, 2013, as he denied left lower extremity symptoms shortly before that date for both VA treatment and an examination for his claim. 

The Veteran continued to seek VA treatment for low back pain that felt like it radiated through the bilateral hips and into the lower extremities. Lay and medical evidence reflect his reports of a constant burning, aching, throbbing, nagging, severe, and shooting, sharp, or stabbing pain. This pain started in the middle of the back and radiated down to the hip bones and down the legs, or in a band-like distribution. The Veteran’s pain was worse with bending and other movements, but decreased somewhat by changing positions constantly, and otherwise multiple treatment options did not provide relief. He stated in 2014 and 2015 that his hip pain was “in the hip bones themselves” and felt like they were “splitting down to the bone.” He had difficulty sleeping on his back or stomach and on his side due to back and hip pain. The Veteran repeatedly rated the severity of his pain as between 7 and 9.5 on a 10-point scale. He noted a “usual” level of pain around 7 or 8, and an increase at times to 9 or 9.5, including during emergency or urgent care treatment for exacerbations. See, e.g., November 2014 NOD; June 2019 Board hearing; VA treatment records in July 2014, October 2014, January 2015, August 2015, October 2015, March 2016, March 2017, and February 2018.

There is conflicting evidence as to the nature and etiology of the Veteran’s bilateral hip and leg pain, as there are indications of other diagnoses specific to the hips and legs. However, his left lower extremity symptoms since July 9, 2013, as well as his right lower extremity symptoms, appear to have been attributed at least partly to his lumbar spine disability, and the medical evidence does not distinguish the type or degree of symptoms that are due to other diagnosed conditions. Therefore, reasonable doubt is resolved in the Veteran’s favor to find them service-connected. 

In this regard, X-rays in April 2014 and July 2014 showed degenerative disc changes in the lumbar spine and degenerative arthritis of the hips. A July 2014 bone scan showed enthesopathy of the right knee but an otherwise normal bone scan of the lower extremities, including the hips and pelvis. 

A December 2014 treatment record noted these results and the Veteran’s complaints, and examination showed that he was tender to palpation at the bilateral sacroiliac (SI) joints and trochanteric bursa. He had decreased reflexes of 1+ both patellae (knees) and ankles, but full (5/5) motor strength. The diagnoses were chronic low back pain secondary to sacroiliitis, bilateral hip pain secondary to trochanteric bursitis, and chronic bilateral knee pain. 

A January 2015 VA treatment record noted that the Veteran’s history and physical examination were consistent with lumbar facet arthropathy and of the hips and knees. Further workup was planned, including an MRI and diagnostic lumbar medial branch blocks (MBBs), then to readdress the hip and knee pain. An August 2015 record noted that the Veteran had medial branch blocks with no pain relief.

An October 2015 VA treatment record noted similar symptoms and again diagnosed chronic low back pain and sacroiliitis, as well as facetogenic lumbar pain, bilateral pelvic rim pain, myofascial pain, and trochanteric bursa tenderness.

A February 2017 VA treatment record for a flare-up of increased back pain diagnosed myofascial pain and muscle spasms after obtaining X-rays.

In May 2019, a CT scan of the lumbar spine was conducted for back spasms and right lower extremity weakness. The impressions included degenerative changes, spinal canal stenosis, and foraminal narrowing. Similarly, a May 2019 VA emergency department record gave a primary diagnosis of muscle spasms and stenosis or degenerative joint disease of the back.

As noted above, the June 2013 and March 2020 VA examinations diagnosed sciatic nerve impairment in the right lower extremity and both lower extremities, respectively, for the Veteran’s lower extremity complaints. Therefore, although these records suggest that the Veteran’s pain or other symptoms in the bilateral lower extremities was partly due to other diagnoses, to include arthritis of the hips, the symptoms from separate conditions have not been medically distinguished. Reasonable doubt is resolved in his favor to include them as part of his ratings. 

Although the Veteran had increased lower extremity symptoms at times, the evidence shows no more than moderate incomplete paralysis or neuralgia of the sciatic nerve bilaterally, which warrants the current 20 percent ratings. 

As noted above, a December 2014 VA treatment record reflects decreased reflexes in both lower extremities. A March 2016 treatment record found decreased sensory testing to vibration in the left lower leg, but normal neurologic findings for motor strength (5/5) and reflexes (2+). Otherwise, medical records generally reflect normal or intact neurologic findings for muscle strength, reflexes, and/or sensory testing in both lower extremities. See, e.g., VA treatment records in August 2013, August 2015, October 2015, January 2016, March 2017 (although with positive SLR results bilaterally), February 2018, November 2018; SSA evaluation in December 2018. Additionally, the Veteran repeatedly denied tingling, paresthesias, numbness, and weakness. See, e.g., VA treatment records in March 2017, February 2018, August 2019. During his June 2019 Board hearing, the Veteran complained of increased pain or radiculopathy in the left lower extremity and specified that he had only pain down the leg of an “exploding” kind of feeling, but no numbness.

As noted above, the June 2013 and March 2020 VA examinations noted moderate intermittent (in 2013 for the right lower extremity) or constant pain (in 2020 for both lower extremities), and moderate paresthesias or dysesthesias and numbness (in both 2013 for the right side and 2020 for both sides). In June 2013, there were normal objective neurologic results for motor strength, reflexes, and sensory testing. In March 2020, there were again normal neurologic results for all tests except for sensory testing from the lower leg through the toes, which were decreased to light touch bilaterally. These findings do not appear to be consistent with the Veteran’s reports for his claim in his NOD or at his Board hearing, or for VA treatment, other than the noted intermittent pain in June 2013 and constant pain in 2020. Nevertheless, it is possible that the Veteran had the types of symptoms recorded in the VA examinations at other times when he did not seek treatment.

In summary, the Veteran had intermittent pain in the right lower extremity prior to July 9, 2013, with a report of increased pain in December 2012, shortly after his claim. He had constant and sometimes excruciating pain in both lower extremities, including the hips, since July 9, 2013. The Veteran’s manifestations generally did not involve organic changes, and there was no muscle atrophy. The evidence reflects only intermittently decreased reflexes and decreased sensation to vibration or light touch. Otherwise, the Veteran had normal muscle strength, reflexes, and sensation, including when he sought treatment for episodes of increased symptoms. Therefore, his symptoms did not rise to the moderately severe level at any point, as required for a higher rating of 40 percent for the sciatic nerve under DC 8520.

There is no argument or indication of other neurologic abnormalities associated with the Veteran’s lumbar spine disability, to include bowel or bladder impairment. VA treatment records noted no urinary or bowel complaints even during episodes of increase symptoms or flares of low back pain. See, e.g., records in October 2015, March 2017, February 2018. Additionally, although VA treatment records reflect erectile dysfunction, for example in August 2013 and April 2019, he has many other medical conditions, and there is no argument or medical suggestion that his erectile dysfunction is related to the lumbar spine disability. 

Considering the alternative IVDS Formula, the combination of the Veteran’s 20 percent rating for the lumbar spine and separate ratings of 20 percent for the left and right lower extremities, including the bilateral factor, results in a 52 percent rating, which rounds down to 50 percent. The next higher rating would be 60 percent under the IVDS Formula, which requires incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. For this purpose, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. §§ 4.25, 4.26, 4.71a, DC 5243 and Notes. Although some VA examiners noted IVDS, there were not incapacitating episodes to warrant a higher rating. Instead, the Veteran has generally reported that he was still able to function during episodes of increased symptoms. Although the Veteran asserted in his November 2014 NOD that he was “bedridden more” because his back “locks up” due to pain, there is no indication of prescribed bed rest due to the lumbar spine disability. Moreover, there is no suggestion of at least six weeks of prescribed bed rest.

In summary, the Veteran’s lumbar spine orthopedic and neurologic manifestations have been relatively stable throughout the course of the appeal. Any increases in severity were not sufficient to more nearly approximate the criteria for the next higher rating or a separate rating at any point. Thus, the preponderance of the evidence is against an increased rating for the back or either lower extremity, there is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Wheatley

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.