Citation Nr: 21030943 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-43 775 DATE: May 20, 2021 ORDER Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right great toe disability is denied. Entitlement to a rating in excess of 20 percent for a service-connected right great toe disability is denied. FINDINGS OF FACT 1. A bilateral knee disability was not manifest in service, it is not otherwise attributable to active service, nor was it caused by or permanently made worse by a service-connected disability. Any arthritis was first shown years after service. 2. The Veteran's service-connected right great toe disability resulted in a moderately severe toe injury as demonstrated by flare-ups of pain, without more severe symptomatology more nearly approximating a severe foot injury or actual loss of use of the foot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right great toe disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for a rating in excess of 20 percent for a right great toe disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to April 1994. The Board of Veterans' Appeals (Board) remanded this matter in December 2019 for further evidentiary development. The case has returned to the Board for appellate review. The Board notes that an April 2021 contract VA examination was conducted for the Veteran's right great toe claim after the appeal was certified to the Board in April 2020 and was not accompanied by a waiver of Agency of Original Jurisdiction (AOJ) consideration. However, the April 2021 examination report is cumulative of prior medical evidence and does not contain pertinent information regarding an increase in severity of the Veteran's right great toe disability beyond that previously considered in the March 2020 supplemental statement of the case (SSOC). Accordingly, remand is not warranted in this case and appellate consideration may proceed. 38 C.F.R. §§ 19.37, 20.1304; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided). Additionally, the record reveals that claims for service connection for back pathology and radiculopathy have been filed, as well as a claim for a total rating based on individual unemployability. At the current time service connection is in effect only for the toe disorder and residual scarring. It is not contended that this pathology alone causes unemployability, and those issues are not before the Board at this time. 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right great toe disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for certain chronic diseases, including arthritis may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303 (b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks entitlement to service connection for a bilateral knee disability. The Veteran contends that his bilateral knee disability is related to his military service. In the alternative, the Veteran contends that his bilateral knee disability was caused or aggravated by his service-connected right great toe disability. Regarding the existence of a current bilateral knee disability, the January 2020 VA examiner confirmed the Veteran's diagnoses of bilateral status post bilateral total knee arthroplasties and bilateral knee osteoarthritis. Thus, there is evidence of a current bilateral knee disability. As previously mentioned, service connection has been established for the Veteran's right great toe disability. A 20 percent rating was assigned, effective March 9, 2012. The Board notes that the Veteran's service treatment records (STRs) are absent as to any complaints, treatment or diagnoses pertaining to a bilateral knee disability and his post-service treatment records are silent as to a bilateral knee disability until 2010. A letter dated April 2013 from the Veteran's private physician stated that the Veteran's toe injury may have led to or worsened the knee pain. No rationale was provided. The Board finds this opinion inadequate to substantiate the claim because it is not based on a review of the file and is couched in speculative terms. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). The August 2013 VA examiner reviewed the Veteran's claims file and opined that it is less likely than not that the Veteran's toe disability proximately caused the Veteran's bilateral knee disability. However, no actual examination of the Veteran was performed, and the Board subsequently found this opinion to be inadequate for rating purposes. Thus, the Board did not rely on this examination for this present decision. As previously mentioned, in December 2019, the Board remanded this matter to afford the Veteran a new VA examination. Pursuant to the Board remand, the Veteran was afforded a VA examination in January 2020. The January 2020 examiner opined that the Veteran's bilateral knee disability was less likely than not incurred in or caused by his military service. The examiner provided the rationale that osteoarthritis is the most common form of arthritis that occurs when the protective cartilage that cushions the ends of the bones wears down over time. The examiner further noted that the risk factors include older age, sex, obesity, joint injures and repeated stress on the joint, genetics, bone deformities, and certain metabolic disease. The examiner further provided that medical literature evaluating the risk of developing osteoarthritis of the knees of military parachutists concluded that unless an injury to the knee occurred, that parachutists as a group do not show an increased prevalence of radiological osteoarthritis of the knee or ankle. As there was no evidence of a bilateral knee injury during the Veteran's military service, the examiner concluded there was no nexus. The January 2020 examiner further provided that it is not at least as likely as not that the Veteran's bilateral knee disability was aggravated beyond natural progression by his service-connected toe disability. The examiner provided the rationale that review of the medical literature shows that dysfunction in one joint rarely causes dysfunction in another, except when damage/injury results in a major displacement of the center of gravity of the body while walking, or significant shortening of the injured extremity. There is no evidence, based on observation and physical findings, that this has occurred in the Veteran's case. The Board finds this opinion well-reasoned and thoroughly considered the Veteran's complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran contends that he believes his current bilateral knee disability to be due to his military service. The Board acknowledges the Veteran's lay statements regarding the nature and etiology of his bilateral knee disability. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of the Veteran's disability. The objective medical evidence does not show that the Veteran's bilateral knee disability had its onset in service or was otherwise incurred during his military service. The Veteran's bilateral knee disability is first shown years after service, and there is no clinical evidence that it is the type of disability that would be due to his duties in service years earlier. The January 2020 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran's bilateral knee disability was not incurred in or aggravated by service nor was it caused or aggravated by his service-connected disability. For the above reasons, the Veteran's claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107. 2. Entitlement to a rating in excess of 20 percent for a service-connected right great toe disability Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's right great toe disability has been rated 20 percent under Diagnostic Code 5003-5284. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 for degenerative arthritis established by x-ray findings provides that the disability will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under Diagnostic Code 5284, a 10 percent rating is provided for a moderate foot injury. A 20 percent rating is provided for a moderately severe foot injury, and a 30 percent evaluation is provided for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The April 2013 VA examiner confirmed the Veteran's diagnosis as degenerative joint disease, right great toe. The examiner noted that the Veteran has/had hallux valgus with no symptoms and had surgeries to correct the hallux valgus in 1992 and 1993. The Veteran described the severity as moderate. The examiner noted that the Veteran did not use any assistive devices as a normal mode of locomotion at that time. Functional impact was described as he must take breaks after walking continuously for one hour. At the August 2015 VA examination, the Veteran reported toe pain of four flares-ups per month each lasting up to eight hours. During a flare-up, the Veteran reported it feeling like he is stepping on glass and he can barely step on the toe. The Veteran described the flare-ups as an inability to run, jump, play sports, or play golf during the flare-up. The Veteran described functional loss as an inability to walk longer than 15 minutes. The examiner noted the Veteran's arthrodesis right great toe with loss of normal range of motion, moderately severe and degenerative joint disease of the great toe as moderately severe. The examiner further noted that the Veteran's toe requires arch supports, custom orthotic inserts, or shoe modifications. Functional impact was described as an impact for all high impact activities and inability to walk longer than 15 minutes. In December 2019, the Board remanded this matter to obtain records from the Social Security Administration (SSA). Pursuant to the December 2019 Board remand, the VA obtained the Veteran's SSA records. The Board has considered whether higher and/or separate ratings are warranted under any other potentially applicable diagnostic codes. However, as the medical evidence does not reflect flat foot, weak foot, claw foot, anterior metatarsalgia, symptomatic hallux valgus, hammer toe, or malunion of tarsal or metatarsal bones, or neurological impairment associated with the Veteran's service-connected right great toe disability, such are not applicable in this case. 38 C.F.R. § 4.71a, 4.124a, Diagnostic Codes 5276-5283, 8520-8530. In conclusion, an increased rating in excess of 20 percent for the Veteran's right great toe disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49.. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.