Citation Nr: 21023124 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-25 359 DATE: April 20, 2021 ORDER Service connection for a gastrointestinal disability, claimed as diverticulitis, is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a left leg disability manifested by swelling of the lower extremity is remanded. Service connection for a right leg disability manifested by swelling of the lower extremity is remanded FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s gastrointestinal disability began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran’s right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The Veteran’s left leg disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 5. The Veteran’s right leg disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a gastrointestinal disability, to include diverticulitis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an award of service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an award of service connection for a left leg disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for an award of service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1962 to January 1964. In August 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See January 2021 supplemental statement of the case. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis and cardiovascular disease, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a gastrointestinal disability is denied. The Veteran generally asserts that he has a gastrointestinal disability, claimed as diverticulitis, that is related to his active service. 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. An October 1963 service treatment record noted that the Veteran was treated for stomach pain diagnosed as gastroenteritis. A follow-up October 1963 treatment note indicated that the gastrointestinal complaint had resolved without difficulty. A November 1963 service discharge examination noted that the Veteran had stomach problems related to anxiety which were subsiding. Post-service treatment records reflect acute and resolved gastritis and gastric ulcer diagnosis in 2012 as well as current treatment for diverticulitis and gastroesophageal reflux disease (GERD) first diagnosed in August 2011. A February 2020 VA examiner opined that it was less likely that the Veteran’s claimed gastrointestinal disability was related to active service. The examiner, in pertinent part, reasoned that gastroenteritis noted in service was acute and had since resolved. The examiner explained that no permanent residual or chronic disability subject to service connection was shown by the service treatment records. A December 2020 VA examiner opined that the Veteran’s claimed gastrointestinal disability was less likely than not related to active service. The examiner reasoned that the gastrointestinal disability treated in service was acute only, and while the service discharge examination noted stomach problems, no heartburn or intestinal problems similar to what the Veteran currently has were noted. The examiner noted there was no stomach problem reported or treated between service discharge in 1964 and 2012. Finally, the examiner explained that the Veteran’s medical treatment records fail to show a continuing chronic stomach diagnosis. The Board finds that taken together, the February 2020 and December 2020 VA opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no contrary medical opinions of record. After review of the record, the Board finds that service connection for the Veteran’s gastrointestinal disability is not warranted. While the Veteran does currently have a diagnosis of GERD and diverticulitis, service treatment records do not show chronic or continuing stomach problems. Indeed, service treatment records reflect the Veteran’s noted stomach problems in service were acute and resolved prior to service separation. Further, the Board notes the first-post service evidence of a gastrointestinal disability was in August 2011, approximately forty-seven years after service discharge. The Veteran does not assert, and the evidence does not show that his claimed disabilities began prior to that point or within one year of his separation from service. Moreover, the February 2020 and December 2020 VA examiners provided negative nexus opinions. The Board has considered the Veteran’s lay statements that his claimed gastrointestinal disability is related to military service but finds that he is not competent to opine as to the etiology of his current gastrointestinal disabilities, GERD and diverticulitis, because they require knowledge of the gastrointestinal system and the development of a diverticulitis and GERD decades after service separation. The record does not show that the Veteran has the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions of record. In conclusion, the Board finds that service connection for is not warranted for a gastrointestinal disability. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. The appeal as to this issue is denied. 2. Service connection for a left knee disability is denied. 3. Service connection for a right knee disability is denied. The Veteran asserts that his left and right knee disabilities are related to his active service. 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 record reflects that the Veteran has been diagnosed with bilateral knee osteoarthritis. Accordingly, the first service connection element of a current disability is established. However, for the reasons set forth below, the Board finds that the preponderance of the evidence is against the claims for service connection for the left and right knee disabilities. Service treatment records do not reflect any injury or knee pain complaint or treatment during active service. On the Veteran’s November 1963 service discharge report of medical history, he endorsed a trick or locked knee. Further notation detailed the locked knee was “transient” without indication of which knee was described. However, the concurrent service separation examination report shows a normal clinical evaluation of the lower extremities. Post-service treatment records show that the Veteran underwent a left knee revision surgery in December 2012 and a total left knee replacement in 2003. Treatment records also confirm diagnoses of degenerative arthritis in both knees and complaints of knee joint swelling beginning in 2001. A February 2020 VA examination report provided a negative etiological opinion. The examiner reasoned that although service treatment records noted a transient locked knee, no permanent residual or chronic disability was shown. A December 2020 VA examiner opined that it was less likely than not that the left or right knee disabilities were related to active service. It was reasoned that during active service, the Veteran’s claimed knee condition was acute only and unspecified on the service discharge examination. The examiner further stated that there was no radiologic (x-ray) evidence of disruption to the articular surface of the knee joint of record which suggests that the left and right knee degenerative arthritis was caused by the natural aging process. It was degenerative arthritis, the examiner opined, that led to the Veteran’s post-service knee replacement. The Board finds that taken together, the February 2020 and December 2020 VA opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. There are no contrary medical opinions of record. Although medical evidence of record reflects the Veteran has been diagnosed with bilateral knee degenerative arthritis, and previously had left knee replacement surgeries, there is no medical evidence supporting a finding that either of the claimed conditions are related to active service. On the contrary, the VA examination reports of record all provided negative nexus opinions for the claimed disabilities and stated there was no relationship between the Veteran’s claimed disabilities and his active service. Further, the Board notes the Veteran’s current bilateral knee problems were not treated or diagnosed until 2001, or thirty-seven years after service discharge. The Veteran does not assert, and the evidence does not show that his claimed disabilities began prior to that point or within one year of his separation from service. Therefore, entitlement to service connection for the right and left knee disabilities based on a continuity of symptomatology under 38 C.F.R. § 3.303(b) or on a presumptive basis for chronic disease under 38 C.F.R. § 3.309(a) is not warranted. The only evidence of record suggesting a link or nexus between the Veteran’s claimed disabilities and his active service comes from the Veteran himself. While the Veteran is competent to provide statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to provide an opinion in this case because his bilateral knee arthritis requires medical knowledge and training pertaining to the musculoskeletal system. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The record does not show that the Veteran has the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation in this case. See Jandreau, 492 F.3d 1372; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the VA medical opinions of record. For the reasons stated above, the Board concludes that the preponderance of evidence is against granting service connection for a left and right knee disability. Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for a left leg disability is denied. 5. Service connection for a right leg disability is denied. The Veteran seeks to establish service connection for his left and right leg disabilities. He asserts that a bilateral leg disability manifested by swelling of the legs and ankles is related to service. 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 record reflects that the Veteran has been diagnosed with peripheral venous insufficiency of the ankles and peripheral vascular disease of the feet. See, e.g., October 2017 private treatment records. Accordingly, the first service connection element of a current disability is established. However, for the reasons set forth below, the Board finds that the preponderance of the evidence is against the claims for service connection for the left and right leg disabilities. Service treatment records show no complaints of, treatment for, or diagnosis of a disability manifested by swelling of the legs and ankles during service. The November 1963 service separation examination report shows a normal clinical evaluation of the lower extremities, as well as the heart and vascular system. The Veteran did not otherwise report that he had current symptoms or a history of right or left lower extremity swelling at service separation. A December 2020 VA examiner opined that it is less likely than not that the Veteran’s left and right leg disabilities were incurred in or caused by service. It was reasoned that the Veteran has congestive heart failure which is causing the swelling of the lower extremities. The examiner explained that no chronic diagnosis was made for swelling of any lower extremity due to congestive heart failure on active duty, and that the Veteran was not diagnosed with congestive heart failure until well after active duty. The Board finds that the December 2020 VA opinion is probative because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, the December 2020 VA medical opinion provides probative evidence that the right and left leg disabilities were caused by non-service-connected congestive heart failure. There are no contrary medical opinions of record. The Veteran believes that his right and left leg disabilities are related to service. However, he is not competent to provide a nexus opinion in that regard. The issue is medically complex, as it requires knowledge of the cardiovascular system and the development of congestive heart failure, with resulting bilateral lower extremity swelling, decades after service separation. The record does not show that he has the medical training or credentials to make such a determination. Jandreau, at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. The Veteran’s right and left leg disabilities, which are of vascular origin as per the December 2020 VA examiner’s opinion, are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. There is otherwise no competent and probative evidence that the Veteran’s right and left leg disabilities were manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. To the extent that the Veteran asserts that the right and left leg disabilities were caused or aggravated by the bilateral knee disabilities, the Board herein denies service connection for the leg and right knee disabilities. Accordingly, service connection on a secondary basis must be denied because there is no primary service-connected disability upon which secondary service connection may be granted. See 38 C.F.R. § 3.310; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of these issues must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.