Citation Nr: 21026581 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-04 305 DATE: May 3, 2021 ORDER Entitlement to service connection for left knee arthritis is denied. REMANDED Entitlement to service connection for left ankle pain is remanded. Entitlement to service connection for right ankle pain is remanded. Entitlement to service connection for gynecological disorders is remanded. Entitlement to service connection for shortness of breath to include as due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War is remanded. Entitlement to service connection for chest pain to include as due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War is remanded. FINDING OF FACT The Veteran's left knee arthritis 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, or secondary to service-connected bilateral foot disability or right knee disability. CONCLUSION OF LAW The criteria for service connection for left knee arthritis, to include as due to service or service-connected bilateral foot and right knee disabilities, are not met, 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to June 1980 and October 2003 to April 2005. She also has over 20 years of service with the National Guard. She served in the Southwest Asia theater of war. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veteran Law Judge in January 2020. A transcript of the proceeding is associated with the record. In April 2020, the Board granted service connection for bilateral hearing loss, tinnitus, a right knee disability, and migraine headaches. The Board remanded the claims listed in the sections above for further development, to include obtaining VA examinations and private and VA treatment records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for left knee arthritis The Veteran contends that her left knee disability is due to service, to include marching on boulders and uneven surfaces. Alternatively, she contends that her left knee disability is due to her service-connected bilateral foot condition and/or right knee condition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Service connection may also be granted, on a secondary basis, for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition. See 38 C.F.R. § 3.310(a), (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this alternative secondary basis, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of left knee degenerative arthritis as evidenced by the October 2020 VA examination, at which time an x-ray showed mild arthritis. Degenerative arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. STRs do not reveal any reports or findings related to any left knee complaint. Further, though the Veteran engaged with VA treatment providers within a few months of separation from her second period of service in 2005, VA treatment records do not indicate any left knee symptoms or condition until January 2012. At that time, the Veteran reported arthralgias in both knees, but no stiffness, giving way, or swelling. Physical examination was normal for the knees, and she was not given a diagnosis for her knee arthralgias. VA treatment records show the Veteran was not diagnosed with left knee arthritis until the October 2020 VA examination, 15 years after her separation from service and 14 years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of left knee pain and giving way since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with her reports of knee pain for the first time in January 2012, years outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). She is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence, which establishes that these symptoms were instead attributable to the normal aging process. The October 2020 VA examiner determined that the symptoms were due to normal wear and tear of the joint with aging, as osteoarthritis occurs when the cartilage that cushions the ends of bones in your joints gradually deteriorates. Eventually, if the cartilage wears down completely, bone will rub on bone. The Board finds this examination and medical opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Service connection for left knee arthritis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's left knee arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The October 2020 VA examiner opined that the Veteran's left knee arthritis is not at least as likely as not related to an in-service injury, event, or disease. As above, the rationale was that the arthritis is due to the normal aging process. The Board finds this examination and medical opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304; Prejean, 13 Vet. App. at 448-9. The Veteran further contends that her left knee arthritis is secondary to her service-connected bilateral foot or right knee conditions; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's left knee arthritis and any service-connected disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The October 2020 VA examiner opined that the Veteran's left knee arthritis is not at least as likely as not proximately due to, the result of, or aggravated by any of the Veteran's service-connected conditions, to include bilateral foot disability or right knee disability. As above, the examiner opined that the Veteran's left knee arthritis is instead more likely due to the normal aging process. The Board finds this examination and medical opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304; Prejean, 13 Vet. App. at 448-9. The Veteran believes her left knee arthritis is due to service or her service-connected right knee or bilateral foot disabilities. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for left ankle pain is remanded. 2. Entitlement to service connection for right ankle pain is remanded. The Veteran underwent a VA examination for her bilateral ankle conditions in October 2020; however, the examiner's opinion regarding direct service connection relies exclusively on a lack of records showing a diagnosis or treatment during the Veteran's service. In addition, the examiner did not consider the Veteran's contentions. A negative opinion based solely on the lack of evidence in service treatment records is inadequate. See generally, Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the opinion of record is inadequate, an addendum opinion should be obtained. 3. Entitlement to service connection for gynecological disorders is remanded. The Veteran contends she experienced irregular menses and fibroids during active service, which resulted in a total hysterectomy after service. STRs indicate the Veteran had fibroids removed in approximately 1992 to 1996, between her first and second periods of active service. See August 1997 periodic examination. February 2004 STRs reveal her fibroids became enlarged, and March 2005 STRs indicate irregular, heavy menses. VA treatment records indicate the Veteran had a total hysterectomy in October 2008, three years after her last period of active service. A review of the record indicates that the Veteran has not been provided a VA examination. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, an appropriate examination shall be conducted upon remand. 4. Entitlement to service connection for shortness of breath to include as due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War is remanded. The October 2020 VA examiner opined against relation to service, indicating that there was no respiratory diagnosis because the Veteran denied pulmonary symptoms. However, the report also indicates that the Veteran occasionally has shortness of breath during the day, resulting in difficulty with some physical activities. Further, the examiner did not discuss the comments of the September 2013 VA examiner regarding her gastrointestinal complaints that are now service connected. Thus, though the examiner opined against related to service, the opinion did not contain an adequate rationale as it was contradictory and did not consider all relevant evidence. Thus, as there has not been substantial compliance with the Board's previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Entitlement to service connection for chest pain to include as due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War is remanded. The October 2020 VA examiner opined that the Veteran's chest pain is not a medically unexplained chronic multi symptom illness or undiagnosed illness because it is a symptom of her service-connected PTSD. However, the examiner also stated that "it is possible" that her chest pain is a symptom of PTSD, and that further cardiac evaluation is warranted given her medical history and age. Further, the examiner did not discuss the comments of the September 2013 VA examiner regarding her gastrointestinal complaints that are now service connected. Thus, the opinion did not contain an adequate rationale as it was contradictory and did not consider all relevant evidence. Thus, as there has not been substantial compliance with the Board's previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left and right ankle tendonitis is at least as likely as not related to service, to include walking on uneven terrain. The examiner's attention is drawn to the Veteran's following statements: (a) she engaged in ten months of constant marching, walking on rocky terrain, and standing while carrying heavy equipment; (b) she contends she injured her right ankle in 2004 or 2005 by stepping in a hole, and her left ankle while running during active service, and; (c) she currently experiences daily bilateral ankle pain. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is advised that a lack of in-service treatment is not dispositive of the issue. The examiner must provide a complete explanation for all opinions. The need for additional physical examination of the Veteran is left to the discretion of the examiner. 3. After completing directive #1, obtain an examination from an appropriate clinician regarding the Veteran's gynecological conditions. The examiner is asked to provide a response to the following: Did the Veteran's gynecological conditions clearly and unmistakably (undebatable) preexist the Veteran's service from February 1980 to June 1980 or October 2003 to April 2005? If the examiner finds the Veteran's gynecological conditions did clearly and unmistakably preexist service, was the condition clearly and unmistakably not aggravated by service? If the examiner finds that the conditions either did not clearly and unmistakably preexist service, or were not clearly and unmistakably aggravated by service, the examiner must opine whether the conditions are at least as likely as not related to service, including constant marching, standing, and other physical exertion. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete rationale must be provided for all opinions expressed. The need for additional physical examination of the Veteran is left to the discretion of the examiner. 4. After completing directive #1, obtain an addendum opinion in connection with her claims of entitlement to service connection for shortness of breath and chest pain. The examiner must review the entire claims file, including a copy of this remand. The need for an additional physical examination in left in the discretion of the examiner. The examiner is asked to provide responses to the following: a) Identify the Veteran's objective indications of a disability. b) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? c) If yes, is such diagnosis at least as likely as not related to service? d) If no, discuss the nature of the disability. e) The examiner should consider the comments of the September 2013 VA examiner concerning her gastrointestinal complaints that are now service connected. A complete rationale must be provided for all opinions expressed. The need for additional physical examination of the Veteran is left to the discretion of the examiner. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.