Citation Nr: 21031426 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-13 952A DATE: May 21, 2021 ORDER The appeal as to the issue of entitlement to service connection for tuberculosis is dismissed. New and material evidence having been received, the claim for service connection for a right knee disability is reopened. Service connection for a low back disability is denied. Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal with respect to the issue of entitlement to service connection for tuberculosis. 2. A December 1995 rating decision denied service connection for a right knee disability; the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision, and the decision is final. 3. Evidence received since the December 1995 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a right knee disability. 4. The preponderance of the evidence is against a finding that a current low back disability was incurred in or caused by service. 5. The preponderance of the evidence is against a finding that a current left ankle disability was incurred in or caused by service. 6. The preponderance of the evidence is against a finding that a current right ankle disability was incurred in or caused by service. 7. The preponderance of the evidence is against a finding that a current left knee disability was incurred in or caused by service. 8. The preponderance of the evidence is against a finding that a current right knee disability was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to a service connection for tuberculosis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. Evidence submitted to reopen the claim for service connection for a right knee disability is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for establishing entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 4. The criteria for establishing entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. The criteria for establishing entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 6. The criteria for establishing entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). 7. The criteria for establishing entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2015 and June 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Withdrawn Claim An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3) (2018). Such withdrawal may be made by the appellant or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a) (2018). 1. Entitlement to service connection for tuberculosis During the March 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences stated on the record that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for tuberculosis. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As such, no allegation of error of fact or law remains before the Board for consideration with respect to that claim. Accordingly, the Board finds that the Veteran has withdrawn his appeal with respect the issue of entitlement to service connection for tuberculosis, and that claim is dismissed. Reopening a Previously Denied Claim A final claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). Additionally, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, then the claim will be reconsidered on the merits. 38 C.F.R. § 3.156(c). 2. Whether new and material evidence has been received to reopen the claim for service connection for a right knee disability The Veteran initially filed a claim for service connection for a right knee disability in October 1994, which was denied in December 1995 rating decision. The Veteran was notified of that decision in a January 1996 letter; however, he did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the December 1995 rating decision is final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2018). At the time of the December 1995 rating decision, the only evidence of record was the Veteran's claim for service connection for a right knee disability. The claim was denied because the record did not show evidence of a right knee condition during service or a current right knee disability. After the December 1995 rating decision, the Veteran's service treatment and personnel records were obtained. However, those records do not show any evidence of relating to a right knee condition. Therefore, they are not relevant to the Veteran's claim, and reconsideration under 38 C.F.R. § 3.156(c) is not warranted. The record also contains a May 2015 VA examination report and subsequent VA treatment records, which show a current diagnosis of a right knee disability. As this new evidence relates to establishing that the Veteran has a current right knee disability, the Board finds that new and material evidence has been received, and the claim is therefore reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-120. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 3. Entitlement to service connection for a low back disability The Veteran asserts that a current low back disability was incurred in or caused by service. During the March 2020 Board hearing, the Veteran testified that he first injured his back, knees, and ankles during a training exercise in which he slipped out of a window while rappelling from a building, causing him to fall about 10 to 15 feet, landing on his feet and ankles. The Veteran testified that he injured his back again in May 1992 when he fell off a cliff and landed on rocks during a training at South Camp, Egypt. He also indicated that he sustained a lower back injury after service, for which he received Workers Compensation and was placed on bed rest. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current low back disability was incurred in or caused by service. To the extent that the Veteran claims to have had continued low back pain since service, the Board finds that such assertions are not consistent with the evidence of record. Service treatment records show that in May 1992, the Veteran sought treatment for lower back pain at the South Camp medical facility, which occurred while bending forward at the waist and lifting weights. The assessment was a lower back muscle strain. The Veteran sought treatment again the following day and reported that his pain increased the night before. A physical examination revealed tenderness in the lower back and pain with straightening the back and marching in place. The assessment was a muscle strain, and the Veteran was advised to continue pain medication and heat soaks. An August 1992 report of medical examination shows that the Veteran's spine was normal upon his discharge from active duty, and he denied any recurrent back pain on an accompanying report of medical history. Thereafter, the record shows no evidence of a back condition until the Veteran filed a claim for service connection in January 2015. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran underwent a VA examination in May 2015, during which he reported back pain that began after he fell during an in-service rappelling training exercise. The Veteran was diagnosed with degenerative joint disease of the lumbosacral spine, and the examiner opined that it was less likely than not that a current low back disability was incurred in or caused by service. In support of this, the examiner explained that the record showed a single incident of lower back symptoms during service, which does not demonstrate either the severity or chronicity of a condition that could reasonable be thought to persist in a chronic manner. The examiner further explained that there was no evidence of a back condition on the Veteran's separation examination or any evidence of a lower back condition for 23 years after the in-service complaint of back pain. Although the Veteran believes that his current back disability is related to service, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of back disabilities requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current back disability is not competent medical evidence. 4. & 5. Entitlement to service connection for a left and/or right ankle disability The Veteran asserts that a current bilateral ankle disability was incurred in or caused by service. During the March 2020 Board hearing, the Veteran testified that he first injured his back, knees, and ankles during a training exercise in which he slipped out of a window while rappelling from a building, causing him to fall about 10 to 15 feet, landing on his feet and ankles. The Veteran also testified that he injured his right ankle in April 1992, which he believed was during the alleged fall in Egypt. He also asserted that a current bilateral ankle disability may be caused by wear and tear from road marches while carrying ruck sacks and heavy gear during service. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current left or right ankle disability was incurred in or caused by service. To the extent that the Veteran claims to have had continued ankle pain since service, the Board finds that such assertions are not consistent with the evidence of record. Service treatment records show no complaints of or treatment for left ankle symptoms during service. In March 1992, the Veteran sought treatment for right ankle pain at the South Camp medical facility, which occurred after tripping on a stair leaving the barracks. It was noted that the Veteran twisted his ankle inward, could not put any weight on his right foot. X-rays of the right ankle revealed no fracture, and the assessment was a grade I ankle sprain. The Veteran was given motrin and crutches. He was advised to return to the clinic in 72 hours or earlier if his symptoms increased. Service treatment records show no further treatment for a right ankle condition. An August 1992 report of medical examination shows that the Veteran's lower extremities and musculoskeletal system were normal upon his discharge from active duty, and he denied any swollen or painful joints; foot trouble; or arthritis, rheumatism, or bursitis on an accompanying report of medical history. Thereafter, the record shows no evidence of an ankle condition until the Veteran filed a claim for service connection in January 2015. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made to VA for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan v., 451 F.3d at 1337. The Veteran underwent a VA examination in May 2015, during which he reported weakness in his ankles and difficulty walking and running at times. He stated that his ankle symptoms began after a fall during service. The Veteran was diagnosed with bilateral chronic/recurrent deltoid ligament sprains, and the examiner opined that it was less likely than not that a current left or right ankle disability was incurred in or caused by service. With respect to the left ankle, the examiner explained that the record showed no evidence of any left ankle symptoms during or after service. With respect to the right ankle, the examiner explained that the record showed a single incident of right ankle symptoms during service, which does not demonstrate either the severity or chronicity of a condition that could reasonable be thought to persist in a chronic manner. The examiner further explained that there was no evidence of right ankle complaints during the Veteran's separation examination or any evidence of a right ankle condition for 23 years after the in-service complaint of right ankle pain. Although the Veteran believes that a current bilateral ankle disability is related to service, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d 1377. In this regard, the diagnosis and etiology of ankle disabilities requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current ankle disability is not competent medical evidence. 6. & 7. Entitlement to service connection for a left and/or right knee disability The Veteran asserts that a current bilateral knee disability was incurred in or caused by service. During the March 2020 Board hearing, the Veteran testified that he first injured his back, knees, and ankles during a training exercise in which he slipped out of a window while rappelling from a building, causing him to fall about 10 to 15 feet, landing on his feet and ankles. He also asserted that a current bilateral knee disability may be caused by wear and tear from road marches while carrying ruck sacks and heavy gear during service. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current left or right knee disability was incurred in or caused by service. To the extent that the Veteran claims to have had continued knee pain since service, the Board finds that such assertions are not consistent with the evidence of record. Service treatment records show no complaints of or treatment for knee symptoms during service. An August 1992 report of medical examination shows that the Veteran's lower extremities and musculoskeletal system were normal upon his discharge from active duty, and he denied any swollen or painful joints; "trick" or locked knee; or arthritis, rheumatism, or bursitis on an accompanying report of medical history. Approximately two years after service, the Veteran filed a claim for service connection for a right knee disability; however, there was no evidence of a right knee disability at that time. Thereafter, the record shows no evidence of a knee condition until the Veteran filed a claim for service connection in January 2015. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made to VA for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan v., 451 F.3d at 1337. The Veteran underwent a VA examination in May 2015, during which he reported bilateral knee pain, swelling, and numbness. He stated that his knee symptoms began after an in-service fall from a building during a rappelling exercise, which caused him to land on both knees while wearing all of his equipment. The Veteran was diagnosed with bilateral patellofemoral pain syndrome and left knee patellar or quadriceps tendon rupture. In September 2015, a VA examiner reviewed the evidence of record and opined that it was less likely than not that a current left or right knee disability was incurred in or caused by service. In support of this, the explained that there was no evidence of a knee injury during service, no evidence of any knee symptoms noted during medical examinations conducted in June 1991 and August 1992, and no evidence suggesting that the Veteran had a knee condition related to his in-service duties. The Board acknowledges that VA treatment records from February 2016 through February 2018 note a history of bilateral knee injury from a fall during service. In October 2016, the Veteran told a treatment provider that he landed directly on his kneecaps after falling two stories during service and stated that x-rays taken at the time did not show any fractures or acute injury. However, as found above, the record does not show evidence of any in-service knee injuries or x-rays taken of the knees during service. Thus, the notations in the Veteran's VA treatment records are based solely on his statements, which are not consistent with the medical evidence of record. See LeShore v. Brown, 8 Vet. App. 406 (1995) (holding that a lay history is not transformed into competent evidence merely because it was transcribed by a medical professional); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Although the Veteran believes that a current bilateral knee disability is related to service, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d 1377. In this regard, the diagnosis and etiology of knee disabilities requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current knee disability is not competent medical evidence. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.