Citation Nr: 21015841 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-19 369 DATE: March 18, 2021 ORDER Entitlement to service connection for a left knee osteoarthritis is granted. Entitlement to service connection for a right knee osteoarthritis is granted. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran has experienced chronic left knee pain related to left knee osteoarthritis since his separation from service. 2. The Veteran has experienced chronic right knee pain related to right knee osteoarthritis since his separation from service. 3. The preponderance of the evidence is against finding that the left ankle disability began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the right ankle disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee osteoarthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for right knee osteoarthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from December 1965 to November 1976 with service in the Republic of Vietnam. In March 2019, the Board of Veterans’ Appeals remanded the Veteran’s claims in part to attempt to obtain the Veteran’s missing service treatment records. In August 2019, the Regional Office informed the Veteran that while an attempt had been made to locate the Veteran’s service treatment records, the National Personnel Records Center had no additional records available. Where, as here, the service records are incomplete, lost or presumed destroyed through no fault of the claimant, VA has a heightened duty to assist in the development of the case. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Hence, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for a bilateral knee osteoarthritis The Veteran claims entitlement to service connection to right and left knee conditions. The Board has recharacterized the Veteran’s knee disability claim to be one for bilateral knee osteoarthritis on the basis of the Veteran’s diagnosed conditions. Due to the similar nature of the claims, they have been discussed together herein. With regard to a present disability, VA medical center (VAMC) treatment notes indicate the Veteran has been receiving ongoing care for chronic bilateral knee pain with a diagnosis of unspecified internal derangement of the knee. See e.g. December 2015, November 2017, and June 2018 VAMC treatment. Further, VAMC treatment shows a diagnosis of bilateral knee arthritis. See November 2010 treatment. Thus, the first service connection element is met. With regard to an in-service disease or injury, as noted above, portions of the Veteran’s service treatment records (STRs) are unavailable. The STRs in the record show the Veteran had no issues with his knees upon enlistment in 1965. Further, the Veteran’s separation examination found no defects of the knees in 1976. However, at the November 2018 Board hearing, the Veteran testified that he injured his knees during service when jumping out of a truck and hitting a stone. He also stated he injured his right knee when a rifle “blew up on” him and resulted in a full leg cast. Accordingly, the second service connection element is also met. Turning to nexus, the Board finds that the evidence of record supports that the Veteran’s bilateral knee impairment is chronic in nature and has been continuously symptomatic since service. Upon VA examination in May 2019, the examiner noted that the Veteran had been treated for bilateral knee pain with a diagnosis of ostearthritis at the VAMC Mountain Home with records from February 1996 to July 2009. The examiner further noted that the Veteran’s separation examination was silent for any bilateral knee injuries. The examiner concluded that the there was no chronicity or consistency of complaints from discharge until 1996 as to conclude the Veteran’s current bilateral knee impairments are related to his claimed in-service injuries. The Board acknowledges that the May 2019 the examiner opined that the claimed knee disabilities were less likely than not related to the claimed in service injuries. However, the Board finds that this medical opinion did not give due consideration to the Veteran’s competent account of the onset of symptoms in service and their continuity thereafter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the Board notes as the Veteran’s STRs are partially unavailable, the Board has a heighted obligation to consider all the evidence of record and consider the benefit of the doubt rule. The Board finds the Veteran’s testimony concerning the onset of his bilateral knee disability and continuing knee symptoms to be credible and probative. The Veteran has been diagnosed with bilateral osteoarthritis, which is considered a chronic condition for which a nexus may be demonstrated by a showing of continuity of symptomatology. Although the Veteran did not seek treatment for his knee conditions from 1976 to 1996, the Veteran provided competent and credible testimony that he experienced ongoing symptomatology during this period. Further, the Board notes that a lack of medical documentation is not fatal to a claim for service connection. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral knee disability is related to his active service, and service connection for bilateral knee osteoarthritis is warranted. 2. Entitlement to service connection for a bilateral ankle disability The Veteran has claimed service connection for bilateral ankle conditions. Due to the similar nature of the claims, they have been discussed together herein. With regard to a present disability, VAMC treatment notes indicate the Veteran has been receiving ongoing care for ankle pain. VAMC treatment dated September 2011 indicated that the Veteran reported his ankle pain was limiting his ability to stand for a long time or lift heavy objects. In June 2017, the Veteran reported worsening pain with an interference with physical activity. The May 2019 VA examiner noted the Veteran X-rays did not reveal any arthritis, but was unable to make a functional assessment as the Veteran did not attend the examination. In Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Court) addressed the issue of whether pain without an accompanying pathology can constitute a “disability” under 38 U.S.C. 1110. The Federal Circuit held that the Veterans Court erred “as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a ‘disability’ under [38 U.S.C.] 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment.” Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018) (overruling the Veterans Court’s holding in Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)). The Federal Circuit concluded that “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Saunders v. Wilkie, 886 F. 3d 1356 (Fed.Cir. 2018). Further, the Court clarified that they “do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment.” Saunders v. Wilkie, 886 F. 3d 1356 (Fed.Cir. 2018). Accordingly, while the Veteran’s bilateral ankle pain has not been attributed to a diagnosis, the Board finds the Veteran’s bilateral ankle pain has resulted in a functional limitation; thus, the Veteran’s condition meets the definition of a current disability. With regard to an in-service disease or injury, as noted above, portions of the Veteran’s STRs are unavailable. The STRs in the record show the Veteran had no issues with his ankles upon enlistment in 1965. Further, the Veteran’s separation examination found no defects of the ankles in 1976. However, at the November 2018 Board hearing, the Veteran testified that he incurred several injuries to the ankles during service including an injury to the left ankle when a ledge gave way, an injury to the right ankle when a pallet fell on his foot, and an injury to the bilateral ankles when jumping out of a helicopter. The Veteran additionally submitted a photograph of himself during service in which he has a cast on his right ankle. Accordingly, the Board finds that the in-service element has been met. Turning to nexus, the evidence of record does not support that the Veteran’s bilateral ankle conditions are etiologically related to service. In May 2019, a VA examiner opined it was less likely than not that the Veteran’s bilateral ankle disabilities were related to service. The examiner noted the Veteran has reported progressive right ankle pain with stiffness, guarding, swelling, and incoordination. The examiner further noted the Veteran’s reports of in-service injuries to the bilateral ankles. However, the examiner noted that no ankle injuries were found on the separation examination and noted there was no x-ray evidence of arthritis in the ankles. The Board notes that the Veteran’s chronic bilateral ankle pain cannot be considered for presumptive service connection because ankle pain is not a chronic disease listed in 38 C.F.R. § 3.309(a). The Board acknowledges the Veteran’s testimony regarding his claim for service connection for his bilateral ankle disability. The Veteran’s own lay opinion in this matter (that his ankle condition is related to his in-service injury) is not probative evidence. Lay persons are competent to provide opinions on some medical issues; however, the diagnosis and etiology of a bilateral ankle condition is complex and could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the weight of the evidence is against finding the Veteran’s bilateral ankle conditions are related to his active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract in any way from the Veteran’s service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding that the Veteran’s bilateral ankle conditions are service connected. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.