Citation Nr: 21013329 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-56 870 DATE: March 9, 2021 ORDER A rating in excess of 20 percent for peripheral neuropathy (PN), right lower extremity (RLE), is denied. Service connection for a right ankle disorder is denied. Service connection for a left hip disorder is denied. Service connection for a low back disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from November 1962 to May 1966. 2. PN, RLE, has been manifested by subjective complaints of numbness and tingling; objective findings include no worse than incomplete, moderate paralysis of the sciatic nerve. 3. Current right ankle, left hip, and left knee disorders have not been shown. 4. A current low back disorder, diagnosed as degenerative arthritis of the spine, was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; a current low back disorder is not causally or etiologically related to service. 5. A current right knee disorder, diagnosed as degenerative joint disease (DJD), was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; a current right knee disorder is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for PN, RLE, have not been met. U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.119, Diagnostic Code (DC) 8520 (2020). 2. A right ankle disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 3. A left hip disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 4. A low back disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 5. A left knee disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 6. A right knee disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Peripheral Neuropathy, RLE Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran is currently rated at 20 percent for PN, RLE, under DC 8520 and contends that he is entitled to an increased rating. In order to warrant a higher rating, the objective medical evidence must show incomplete, moderately severe paralysis of the sciatic nerve (40 percent under DC 8520). Turning to the medical evidence, the Veteran reported numbness, tingling, and some weakness in the RLE during a May 2017 VA examination. After a physical evaluation, the examiner noted mild, incomplete paralysis of the sciatic nerve. As the examiner characterized the disorder as mild, this evidence does not support a higher rating. Next, a February 2020 VA examination reflected mild paresthesias and mild numbness of the RLE. Further, the examiner indicated moderate, incomplete paralysis of the sciatic nerve. Additionally, a November 2020 VA examination showed mild paresthesias and numbness of the RLE. A physical examination reflected that the sciatic nerve of the RLE was normal and the femoral nerve showed incomplete, mild paralysis. As such, the evidence obtained during the VA examinations does not show moderately severe, incomplete paralysis of the sciatic nerve, as it was characterized, at worse, as moderate. In addition, the clinical evidence shows treatment for diabetic PN; however, the medical evidence does not show moderately severe, incomplete paralysis of the sciatic nerve as outlined in the rating criteria. As such, the medical evidence does not support a rating in excess of 20 percent for PN of the RLE. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s diabetic PN has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal for an increased rating is denied. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Right Ankle At an October 2016 VA examination, the Veteran stated that his right ankle swelled 5 to 6 times a year. Further, he experienced pain after sitting for long periods of time which subsided after walking. The examiner reported a normal ankle examination and that X-rays of the ankle were normal. As such, he concluded that there was no objective evidence to render a diagnosis of an ankle disability. Next, at a February 2020 VA examination, the Veteran reported that he sprained his right ankle during a jump in-service but never sought treatment for it. The examiner reported that the Veteran did not have a current diagnosis associated with the right ankle. Further, the examiner noted that the Veteran had normal range of motion of the right ankle. The examiner noted some pain upon examination, but not enough to result in functional loss. Additionally, the clinical treatment records do not show a currently-diagnosed right ankle disorder. While the Veteran has reported pain, there is no medical evidence which suggests any functional impairment or functional loss due to the pain. Service connection may be warranted for pain alone if connected to service. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed Cir. 2018). However, this does not apply given that the evidence fails to show any functional impairment that affected his earning capacity. Therefore, the medical evidence does not support the diagnosis of a current disability. In the absence of a current diagnosis, service connection may not be granted under any theory of entitlement.   Left Hip Turning to the medical evidence, a September 2016 VA examiner did not diagnose a left hip disorder. While the Veteran reported that left hip pain began approximately 5 years prior, the examiner noted that the Veteran had never been to any physician or received treatment for the left hip. The examination reflected normal range of motion without pain. As such, the examiner found no evidence of a current left hip disorder. At a February 2020 VA examination, the Veteran reported that he had multiple bad falls during jumps in service which required first aid. The examiner found no current diagnosis associated with a left hip disorder. There was limited flexion of the hip which the examiner attributed to back pain. There was some pain upon examination, but the examiner specifically indicated that the pain did not result in any functional loss. In addition, the clinical evidence does not show a currently diagnosed left hip disorder. While he reported pain during the VA examination, the medical evidence does not indicate that this pain results in any functional impairment or functional loss. As such, the medical evidence weighs against the presence of a current disorder and service connection is not warranted. Low Back Disorder Turning to the medical evidence, the Veteran has been diagnosed with degenerative arthritis of the spine since 2016. As such, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the Veteran contends that a back disorder is due to parachute jumps during service. The service treatment records (STRs) are silent for complaints of or treatment for a back disorder. Further, the 1966 separation examination showed a normal clinical evaluation of the spine. As such, the medical evidence weighs against the in-service incurrence of a back disorder. To the extent that the Veteran asserts a nexus between a back disorder and service, the medical evidence does not support the appeal. Specifically, a September 2016 VA examiner concluded that degenerative arthritis was less likely than not caused by or related to service. He noted that there were no complaints of or treatments for a back disorder during service. Further, arthritis was not shown until 50 years after separation. The examiner stated that if arthritis was related to parachute jumping, it would have manifested during service or a few years after. A February 2020 VA examiner similarly concluded it was less likely than not that a current back disorder was related to service. He noted no complaints of back pain during service or for many years after. As such, he opined that a current low back disorder was unrelated to airborne training or other activities in service. In support of the claim, an October 2020 VA examiner opined that a current low back disorder was at least as likely as not incurred in or caused by the claimed in-service injury or event. She noted that the Veteran completed multiple parachute jumps during service. She reflected that his service in this capacity entitled him to service connection for lumbar spine degenerative issues. Based on the above, the Board has accorded more probative weight to the September 2016 and February 2020. These examinations were adequate for review purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the examiners were not fully aware of the Veteran’s past medical history or that he misstated any relevant fact. Moreover, the examiners have the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Therefore, high probative value is assigned to these opinions. Lesser weight is assigned to the October 2020 opinion as it did provide a rationale based on objective medical evidence to support the opinion. Instead, the examiner made a legal conclusion that the Veteran was entitled to presumptive service connection. As such, the weight of the medical evidence does not support service connection on a direct basis. Next, degenerative arthritis of the spine is considered as a chronic disease under 38 C.F.R. § 3.309(a) and presumptive service connection will be considered. However, while arthritis has been shown, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established. Specifically, while the Veteran’s active service ended in 1966, the record does not show evidence of a complaint of back pain until 2016, some 50 years later. As such, symptoms consistent with degenerative arthritis did not manifest to a compensable degree in service or within the one-year presumptive period. Additionally, continuity of symptomatology has not been established. Specifically, the STRs are absent of any complaints of back pain during service. Further, as noted, the Veteran did not begin receiving treatment for back pain until 2016, approximately 50 years after separation from service. Although he stated that he experienced back pain since separating from service, the medical evidence does not support this contention. While not dispositive, the lengthy period of time between separation from service and treatment weighs against continuity of symptomatology. Therefore, the medical evidence does not support service connection on a presumptive basis. Left Knee Turning to the medical evidence, the Veteran reported off and on bilateral knee pain during a September 2016 VA examination. The VA examiner indicated that the left knee was normal with normal range of motion and without pain. Further, x-ray imaging of the left knee was normal. As such, no diagnosis was made. Next, a February 2020 VA examiner found no evidence of a current left knee disorder. Left knee range of motion was normal and no pain was noted upon examination. Further, the clinical treatment records do not show complaints of, treatment for, or a diagnosis of a left knee disability. As such, without evidence of a current disability, service connection cannot be granted under any theory of entitlement. Right Knee Turning to the medical evidence, the Veteran has been diagnosed with right knee osteoarthritis since 2016. X-ray imaging showed early DJD of the right knee. As such, a current diagnosis has been shown and the first element of service connection has been met. As to in-service incurrence, the Veteran contends that a right knee disorder is due to parachute jumping. The STRs do not reflect any complaints of or treatment for a right knee disorder. Further, the separation examination was silent for any knee disorders and the Veteran does not contend that he received treatment for the knee during service. Therefore, the STRs do not support an in-service incurrence. To the extent that the Veteran asserts a nexus between a right knee disorder and service, the medical evidence does not support the appeal. Specifically, the February 2020 VA examiner reviewed the file and found that the right knee disorder was not related to service. A review of the clinical records similarly does not reflect a connection between a right knee disorder and service. As such, the medical evidence weighs against direct service connection. Next, DJD of the knee is considered as a chronic disease under 38 C.F.R. § 3.309(a) and presumptive service connection will be considered. However, while arthritis has been shown, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established. Specifically, while the Veteran’s active duty ended in 1966, the record does not show evidence of a complaint of knee pain until 2016, 50 years later. As such, symptoms consistent with degenerative arthritis did not manifest to a compensable degree in service or within the one-year presumptive period. Additionally, continuity of symptomatology has not been established. Specifically, the STRs are absent of any complaints of knee pain during service. The Veteran did not begin receiving treatment for knee pain until 2016, approximately 50 years after separation from service. Although he stated that he experienced knee pain since separating from service, the medical evidence does not support this contention. While not dispositive, the lengthy period of time between separation from service and treatment weighs against continuity of symptomatology. Therefore, the medical evidence does not support service connection on a presumptive basis. The Board has considered the Veteran’s lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.