Citation Nr: 21040084 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-50 309 DATE: July 2, 2021 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a right-hand disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for residuals of dental trauma is remanded. FINDING OF FACT The Veteran's left knee disability clearly and unmistakably pre-existed his military service and clearly and unmistakably was not aggravated by his military service, meaning worsened beyond its natural progression. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a left knee disability. 38 U.S.C. §§ 1110, 1111, 1132, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to January 1969. This appeal to the Board of Veterans' Appeals (Board) is from a July 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" hearing in January 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Two of the claims now on appeal initially were characterized as for service connection for "right hand nodes, cellulitis, cyst, chronic pain residuals" and "right ankle and toe cellulitis". As such, the RO appears to have only adjudicated entitlement to service connection for skin or similar disorders affecting the Veteran's right hand and right ankle/foot. However, the Board sees that he initially filed a claim to establish his entitlement to service connection for "right hand injuries" and "right ankle and toe" disabilities, specifically. Furthermore, during the pendency of this appeal, the evidence has revealed diagnoses of right-hand arthritis and right-ankle tendonitis and fracture. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008); 38 C.F.R. § 3.159(c). The Veteran's pleadings have shown that he is essentially claiming entitlement to service connection for a right-hand disability and right ankle disability, regardless of how they may be diagnosed or labeled. So, the Board has recharacterized his claims more generically as for a right-hand disability and right ankle disability. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a relevant injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to service connection for a left knee disability During his January 2021 "virtual" hearing before this Board, the Veteran testified that he was in a mass load responsibility during service, meaning had to take all the weapons from the igloo to the flight line (i.e., a total readiness exercise that they were graded on). He claimed that, during that training, he fell in 1967 or 1968 and hurt this knee and sustained a bursa sac and cartilage injury. He said his knee was wrapped and braced, but he also conceded that the swelling went down and that, after about a week or so, he went back to work. He explained that PT was not a thing back in the day that people did, but that he since has had surgery for cartilage repair (he says within a year or thereabouts of separating from service) and bursa sac remedy and more recently knee replacement after arthritis developed in this knee and it was "bone on bone". The Veteran's left knee disability was found to preexist his military service and, thus, he contends it was aggravated by his service meaning worsened beyond its natural (normal) progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Concerning this, the most probative medical evidence of record is the report of the August 2018 VA examination. This VA examiner confirmed the Veteran has a current left knee disability. But this VA examiner also indicated that, while the Veteran's left knee disability clearly and unmistakably pre-existed his service, it was not aggravated by his service again, meaning worsened beyond its natural progression. The rationale was that his service treatment records (STRs) are unremarkable for complaints of or treatment for any left knee disability. This VA examiner further noted the Veteran did not report any knee problems during his separation examination. Thus, the only evidence tending to support this claim for service connection is the Veteran's lay testimony, including during his hearing. Although he is competent to talk about symptoms he has experienced or a continuation of them or even seeming exacerbation of his condition, he is not competent to ascribe his symptoms to a particular underlying diagnosis or determine whether any underlying left knee disability was versus was not aggravated during or because of his service since this determination requires medical training and credentials beyond the common knowledge of a layman. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1) and (2). Thus, the Board gives more probative weight to the VA examiner's opinion, which his entirely against this claim. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Ultimately, then, the preponderance of the evidence is against finding that the Veteran's pre-existing left knee disability was aggravated by his service meaning worsened beyond its natural progression. As such, service connection for a left knee disability is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right-hand disability is remanded. 2. Entitlement to service connection for a right ankle disability. The Veteran contends that his right hand and right ankle disabilities are the result of his service. A STR notes an abscess on his right hand, infections of his fingers, and complaints of right foot and ankle swelling. Post-service treatment records list diagnoses of right-hand arthritis and right ankle tendonitis. While the Veteran has been afforded a VA skin examination it was in the context to determine the nature and etiology of any current right hand and right foot skin conditions, which, as already explained, does not entirely encompass his claims. He has not been provided a VA compensation examination additionally addressing the nature and etiology of his right-hand arthritis and right ankle tendonitis. And, as his claims have been recharacterized to also include right hand and right ankle disabilities other than skin conditions, he must be additionally evaluated for any and all right hand and right ankle disabilities he has had during the pendency of his appeal and for an opinion concerning the source or cause of them. 3. Entitlement to service connection for a left-hand disability. During his January 2021 "virtual" hearing before this Board, the Veteran's representative asserted an alternative theory of entitlement namely, that the Veteran's left-hand disability is secondary to his right-hand disability. Therefore, as the claim of entitlement to service connection for a left-hand disability is presented, in part, as a claim for service connection of this disability secondary to the right-hand disability also being claimed, these claims are "inextricably intertwined". Thus, consideration of this derivative claim for a left-hand disability must be deferred pending resolution of the right-hand disability claim. 4. Entitlement to service connection for residuals of dental trauma is remanded. As for this remaining claim, the Board cannot make a fully informed decision concerning it. Specifically, while the STRs include a record of dental treatment, it is not immediately clear whether the Veteran was treated for dental trauma in service, meaning owing to blunt force trauma from an external force. As such, the Board is unable to tell on its own whether he actually sustained dental trauma in service. Therefore, medical comment is needed concerning this before deciding the appeal of this claim. Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for an opinion concerning the nature and etiology of any currently diagnosed right hand or right ankle disability including especially right-hand arthritis and right ankle tendonitis. All pertinent symptomatology and findings must be reported in detail and all indicated diagnostic tests and studies accomplished. The claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant medical and other history, including the Veteran's lay statements. (a) Identify (by diagnosis) each right hand, left hand and right ankle disability found on examination or shown during the pendency of these claims to exist, even if now resolved. (b) Also identify the likely etiology of each right hand, left hand and right ankle disability confirmed to exist or have existed during the pendency of this appeal, even if now resolved. Specifically, is it at least as likely as not (a 50 percent or greater probability) the disorder is related to (was incurred in or aggravated by) the Veteran's military service. If the disability involves arthritis, also indicate whether it initially manifested within the first year after service to, in turn, warrant presuming it was incurred in service or whether it is otherwise related or attributable to the Veteran's service, even if not initially diagnosed until after his service. (c) If the Veteran's right-hand disability is found to be related or attributable to his service, is it also at least as likely as not (a 50 percent probability or greater) that his left-hand disability was caused OR is aggravated by his right-hand disability? *The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). All opinions, whether favorable or unfavorable to these claims, must include explanatory rationale - preferably citing to supporting evidence in the file and/or accepted medical authority. 2. Also schedule the Veteran for a VA examination for his claimed dental condition which he is alleging is the result of dental trauma. The examiner must review the claims file. The examiner is asked to identify, either upon examination or via review of the STRs, whether the Veteran sustained any sort of dental trauma in service meaning blunt force injury from an external force. If there is evidence of such trauma, the examiner is asked to describe the nature and extent of any dental injury in service and provide an opinion on whether there are any residuals. If there are, please specify them. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.