Citation Nr: 21013492 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-06 732 DATE: March 9, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right foot disability, also claimed as right ankle disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's left knee osteoarthritis began during active service, manifest within one year of discharge, or is otherwise related to an in-service injury or disease, to include the Veteran's military occupational specialty duties as a paratrooper. 2. The preponderance of the evidence is against finding that the Veteran’s right foot and ankle disabilities, including right ankle tenosynovitis, pes planus, hallux limitus, hallux rigidus, and right toe degenerative joint disease began during active service, manifest within one year of discharge, or are otherwise related to an in-service injury or disease, to include the Veteran's military occupational specialty duties as a paratrooper. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right foot disability, also claimed as right ankle disability, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1996 to October 1999. The Veteran’s claims were previously before the Board in November 2017 and August 2020. At that time, the Board determined that the Veteran’s claims required additional development, including new VA examinations for the Veteran’s respective disabilities on appeal. The Board finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a left knee disability is denied. The Veteran contends that he injured his left knee in service in the course of his military occupational specialty duties as a paratrooper. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left knee osteoarthritis, and evidence shows that the Veteran was treated for bilateral knee retropatellar pain syndrome in service, the preponderance of the evidence weighs against finding that the Veteran’s left knee degenerative joint disease began during service, within one year after separation from service or is otherwise related to an in-service injury, event, or disease. Service treatment records show that in July 1997, June 1999, July 1999, and September 1999 the Veteran complained of bilateral knee pain, diagnosed as retropatellar pain syndrome. Post-service, there is no evidence that the Veteran was treated for left knee osteoarthritis or any other knee disability within one year of service or indeed, for more than a decade after separation from service. Moreover, while the Veteran is competent and credible to report experiencing symptoms of knee pain since service, he is not competent to determine that his symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the August 2020 VA opinion, which, as discussed further below, found that the Veteran’s left knee arthritis was diagnosed many years after his discharge from service; and is attributed to intercurrent causes. In sum, the preponderance of the evidence is against finding that the Veteran’s left knee arthritis was chronic in service, manifested to a compensable degree within a presumptive period, and was noted in service with attributable continuity of symptomatology. However, service connection for a right knee disability may still be granted on a direct basis. In a previous remand, the Board found that the Veteran’s May, September, and November 2012 VA examinations did not specifically address the issue of whether or not the Veteran’s left knee disability was related to service. The Veteran was afforded a VA examination in February 2020. The examiner determined that the Veteran’s left knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that the Veteran’s records contained a notation that he received a parachute badge while in service, but there was no documentation of any evaluation or treatment for a knee condition while in service except a notation of bilateral knee tendonitis on his separation physical. Post-service, there was no documentation of a specific ongoing left knee condition after separation from service until at least 2015. The examiner concluded that there was no nexus of continuity between the Veteran’s treatment for knee pain in 1999 and the evaluation of his left knee condition in 2015. In an April 2020 VA medical opinion, the examiner opined that the Veteran’s left knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that while the Veteran was treated for a left knee strain in 1997, there was no documentation of any ongoing evaluations or treatment for a left knee condition while in service. The examiner also observed that in 2013, the Veteran was evaluated for a new onset of pain to the left knee; however, there was no documentation of a specific ongoing left knee condition after separation from service until 2013. The Board previously found that while the examiners found that the Veteran’s service treatment records were absent for documentation of a left knee condition except for isolated incidents, the Veteran’s service treatment records actually contain numerous complaints of and treatment for both bilateral and specific left knee conditions. The Veteran was treated for knee conditions in service several times between 1997 and 1999. The Board further observed that it is the totality of both the medical and lay evidence of record that must be considered when rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board remanded the claim for a new VA medical opinion. Another VA medical opinion was obtained in August 2020. The examiner opined that the Veteran's current left knee arthritis is less likely than not related to his inservice treatment for retropatellar pain syndrome or to his duties as a paratrooper. The examiner explained that the Veteran was treated for retropatellar pain syndrome in service, which is a condition in which the cartilage of the knees is damaged due to trauma, imbalance of the muscles around the knee, or overuse and is common in those who participate in sports or other activities that load the knee. She explained that this condition generally resolves with rest and change of activities and that it is less likely than not related to the Veteran's current left knee osteoarthritis based on the location of the current degenerative changes, as well as the absence of treatment for knee problems for more than a decade after separation from service. She opined that the Veteran's left knee osteoarthritis is more likely than not due to normal aging, his (over)weight, post-service injury to the knee, and post-service employment in occupations that require repetitive use and stress of the lower extremities. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical evidence of record to contradict this opinion. Moreover, while the Veteran has submitted a number of clinical articles discussing the types and frequencies of injury that result from parachute jumping, all these articles establish is that parachuting is a high risk activity which results in injury to a small percentage of those who participate in it, not that the Veteran’s own injuries are the result of his duties as a paratrooper. In sum, given that the articles are general in nature and do not specifically address the Veteran’s disability, they have minimal probative value when weighed against the VA opinion that is specific to the Veteran’s case. In this regard, the examiner thoroughly considered the Veteran’s record and medical history when forming his opinion, Furthermore, while the Veteran himself may sincerely believe that his current left knee disability is related to service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.”). The Board finds that the question of whether the Veteran currently has left knee osteoarthritis disease due to his paratrooper duties is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran’s opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the August 2020 VA medical opinion. In conclusion, based on the analysis above, the Board finds that the Veteran's current left knee degenerative joint disease did not have onset during service, within one year of service and is not otherwise related to the Veteran's service, to include his duties as a paratrooper. Accordingly, entitlement to service connection for a left knee disability must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right foot disability, to include a right ankle disability, is denied. The Veteran contends he injured his right foot and ankle in service in the course of his military occupational specialty duties as a paratrooper. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of right ankle tenosynovitis, right pes planus, right hallux limitus, right hallux rigidus, and degenerative changes to the right toes and evidence shows that the Veteran was treated in service for right ankle inversion, the preponderance of the evidence weighs against finding that the Veteran’s right foot or ankle disabilities began during service, within one year after separation from service or are otherwise related to an in-service injury, event, or disease. Service treatment records show that the Veteran was seen in December 1997 for right ankle pain and inversion, which he attributed to an injury on an Airborne operation. No complaints of right foot pain or injury are noted. Post-service, there is no evidence that the Veteran was treated for a right foot or ankle disability within one year of service or, indeed, for more than a decade after separation from service. Moreover, while the Veteran is competent and credible to report experiencing symptoms of foot and ankle pain since service, he is not competent to determine that his symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the August 2020 VA opinion, which, as discussed further below, found that the Veteran’s arthritis was diagnosed many years after his discharge from service; and is attributed to intercurrent causes. In sum, the preponderance of the evidence is against finding that the Veteran’s right foot and ankle arthritis was chronic in service, manifested to a compensable degree within a presumptive period, and was noted in service with attributable continuity of symptomatology. However, service connection for right foot and ankle disabilities may still be granted on a direct basis. In a previous remand, the Board found that the Veteran’s May, September, and November 2012 VA examinations did not specifically address the issue of whether or not the Veteran’s right foot condition was related to service. In a February 2020 VA medical opinion, the examiner opined that the Veteran’s right foot condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that while there was a notation of a parachute badge in service, there was no documentation of any evaluation for a right foot condition while in service. The Veteran was evaluated in 2015 for diffuse joint pain, including in his right ankle. However, there was no documentation of a specific ongoing right ankle condition after separation from service until at least 2015. As such, the examiner found that there was no nexus of continuity between the Veteran’s separation examination in 1999 and the evaluation of the Veteran’s foot in 2015 for an ongoing condition. Again, the Board previously found that while the examiner found that the Veteran’s service treatment records did not contain documentation of a right ankle condition, the Veteran’s service treatment records clearly show a right ankle injury in December 1997. The Board further observed that it is the totality of both the medical and lay evidence of record that must be considered when rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board determined that a new VA medical opinion was required and remanded this issue as well. A new VA medical opinion was obtained in August 2020. The examiner opined that the Veteran’s current right foot disability is less likely than not related to his inservice treatment for ankle inversion or to his duties as a paratrooper. The examiner explained that the Veteran's 1997 right ankle inversion was an acute injury that resolved without any apparent residual symptoms. The Veteran had no further ankle complaints and no right foot complaints in service or for more than a decade after separation from service. The examiner concluded that because the Veteran's current right foot and ankle conditions did not present until almost two decades after service, they are less likely than not related to any injury in service, to include his duties as a paratrooper. She also noted that post-service, the Veteran engaged in a number of occupations that require repetitive use of the lower extremities and feet. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical evidence of record to contradict this opinion. While the Veteran has submitted a number of clinical articles discussing the types and frequencies of injury that result from parachute jumping, all these articles establish is that parachuting is a high risk activity which results in injury to a small percentage of those who participate in it, not that the Veteran’s own injuries are the result of his duties as a paratrooper. In sum, again, given that the articles are general in nature and do not specifically address the Veteran’s disability, they have minimal probative value when weighed against the VA opinion that is specific to the Veteran’s case. In this regard, the examiner thoroughly considered the Veteran’s record and medical history when forming his opinion. Furthermore, while the Veteran himself may sincerely believe that his current right foot and ankle disabilities are related to service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.”). The Board finds that the question of whether the Veteran has a current right foot or ankle disability due to his paratrooper duties is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran’s opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the August 2020 VA medical opinion. In conclusion, based on the analysis above, the Board finds that the Veteran’s current right foot and ankle disabilities did not have onset during service, within one year of service and is not otherwise related to the Veteran’s service, to include his duties as a paratrooper. Accordingly, entitlement to service connection for right foot and ankle disabilities must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.