Citation Nr: 21041354 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-14 559A DATE: July 8, 2021 ORDER Entitlement to service connection for left knee condition, to include degenerative joint disease, status post repair of left ACL with postoperative scar, is denied. Entitlement to service connection for left foot condition, to include plantar fasciitis, pes planus, heel spur and arthritis, is denied. Entitlement to service connection for right foot condition, to include plantar fasciitis, pes planus, heel spur and arthritis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's current left knee condition is not related to a disease or injury incurred in service and instead affirmatively indicates that this condition resulted from a post-service injury. 2. The most competent, probative evidence of record indicates that the Veteran's current bilateral foot condition was not aggravated by, and is not causally or etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a left foot condition have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for a right foot condition have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1989 to February 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal of October 2012 and April 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that jurisdiction currently rests with the Denver, Colorado RO. In October 2018, the Veteran presented testimonial evidence at a Travel Board hearing held at his local RO before the undersigned Veterans Law Judge. A transcript is of record. Addressing the relevant procedural history, following a previous Board remand in June of 2019, this case was most recently before the Board in September of 2020 at which time it was remanded for additional development, to specifically include obtaining VA addendum opinions and affording the Veteran an opportunity to provide information in regard to outstanding private treatment records. This case has now been returned to the Board for further adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900 (c); 38 U.S.C. §7107 (a)(2). Service Connection Service connection will generally be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for left knee condition, to include degenerative joint disease, status post repair of left ACL with postoperative scar, is denied. The Veteran asserts that he incurred a left knee condition during his active duty service. More specifically, he has contended that he participated in playing basketball during service which, "created wear and tear on my knees [and] caused the problems I have [had] with my knees since I got out the military." See August 2013 Notice of Disagreement. In this case, VA has previously conceded that the Veteran has a current left knee disability and that he had documented in-service bouts of left lower extremity pain. See e.g. September 2020 Board Remand. Therefore, the question for the Board is whether the Veteran's current left knee disability began during service or was otherwise caused by or related to his active duty service. In this case, the Board finds that the preponderance of the evidence weighs against a finding that a current condition is related to an in-service left knee injury. As such, service connection is not warranted. As stated above, the Board acknowledges that there is a December 1990 note in the Veteran's service treatment records indicating that he reported with a left leg injury of two days with swelling and asserted that he didn't "remember hitting it on anything but it is very painful". However, this reportedly involved the calf rather than the knee, and overall, the Veteran's service treatment record reports are unremarkable for any complaints, treatment or diagnosis of a left knee condition. Notably, a December 1994 report of medical history contained in the Veteran's service treatment records that was prepared in anticipation from military service indicates that the Veteran denied currently having or having had "trick" or locked knee, arthritis, or a bone or joint deformity. A December 1994 report of medical examination undertaken for the same purpose similarly indicates that his lower extremities were evaluated as "normal". Post-service records are indicative of an injury to the Veteran's left knee that occurred more than a year after he left service. More specifically, May 1997 notations in private treatment records in regard to a complaint of "left knee pain" indicate that the Veteran "was injured in October of 1996 when he was playing basketball, jumped and planted and felt a pop in his left knee." It was explicitly stated that there was, "No previous injury to the [left] knee". Similarly, private treatment record notations from April of 1999 also affirm that during a visit for his right knee after a fall on the sidewalk, the Veteran similarly reported that, "about 1 1/2 years ago while playing basketball he landed on his knee, heard a pop, and had immediate pain and swelling." In regard to a nexus, the Board notes that in November of 2019, a VA examiner determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided as rationale that "He experienced a right knee injury during service when he possibly hyperextended his right knee while basketball on 11/26/1990. He underwent right knee ACL repair in 1996. No left knee complaints were documented in his service treatment records and there is no evidence in his service treatment records to suggest that he experienced any injury, event or disease which could have caused his left knee ALC tear and degenerative arthritis. Therefore, a nexus has not been established." The examiner further noted that the Veteran, "was not diagnosed with bilateral knee degenerative arthritis and did not undergo any knee surgeries with residual scars until after he separated from the Marine Corps. Therefore, his current bilateral knee degenerative arthritis, bilateral ACL tear s/p arthroscopy were not caused by a degenerative knee condition with scar during service. A nexus has not been established." Thereafter, the claim was remanded once again in order to obtain an opinion that did not rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In accordance with the September 2020 Board remand, a VA examiner determined in April of 2021 after an in-person examination and review of the claims file that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that "[d]uring service, Contusion to calf-resolving, to the left lower extremity was acute only. Of note, Veteran did not remember hitting site at the time of evaluation (12/1990); and examination was not consistent with an injury to the knee joint as assessment of left "contusion to calf-resolving" was rendered. There is no evidence of chronicity of care of left contusion to calf-resolving that occurred in 12/1990 as final examination from 12/1994 was silent for left leg condition. Additionally, Veteran specifically denied joint pain on final examination from 12/1994. The objective evidence indicates that Veteran was initially seen for left knee condition in 5/1997. At the time of evaluation (5/1997), Veteran reported injuring his left knee playing basketball in 10/1996 which was over a year after Veteran's documented end date of military service (2/13/1995). Therefore, it is NOT at least as likely as not that Veteran's left knee condition (degenerative arthritis s/p meniscectomy, ACL repair/reconstruction, and debridement) had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury as the evidence clearly indicates that Veteran's left knee condition was a result of a left knee injury Veteran sustained playing basketball in 10/1996 which was after Veteran's time in the service. A nexus has not been established." This examiner addressed the lay statements made by the Veteran and referenced several sources of medical evidence in so opining. The examiner was also aware of the Veteran's medical history, provided a fully articulated opinion, and furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Significantly, there are no contrary opinions of record that would support the Veteran's contentions and establish a nexus between the Veteran's asserted left knee condition and his time on active duty. Thus, the Board relies on this opinion as well as the objective evidence of record in determining that it is less likely than not that the Veteran's left knee condition was caused by or is otherwise related to his military service. In so finding, the Board acknowledges the Veteran's apparent belief that his left knee condition is connected to his military service. However, as a lay person, it has not been shown that the Veteran has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of left knee conditions is not a matter capable of lay observation and requires medical expertise to determine. Accordingly, the opinions of the Veteran as to the diagnosis or etiology of his left knee condition, while acknowledged, unfortunately are not probative medical evidence. Further, the Board emphasizes that while the evidence of record does in fact demonstrate that the Veteran incurred his current left knee disability as a result of a basketball-related injury, it does not indicate that this incident occurred in service as he currently asserts. As stated above, private treatment records clearly indicate that the Veteran sought treatment after a 1996 basketball-related injury which affirmatively indicates that his current symptoms manifested well over a year post-service in an incident unrelated to his active duty service. Significantly, when determining the credibility of lay evidence, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Even affording the Veteran the benefit of the doubt in regard to the sincerity of his current assertions that his left knee condition onset during service, it is noteworthy that contemporaneous evidence has greater probative value than history as reported by the claimant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Based on the foregoing, the preponderance of the evidence is against the claim of service connection for a left knee condition and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for left and right foot condition, to include plantar fasciitis, pes planus, heel spur and arthritis, is denied. The Veteran also contends that he was diagnosed with respective right and left foot conditions while in service. See e.g. October 2018 Board Hearing Transcript. Specifically, the Veteran has asserted that he was treated in service on multiple occasions for complaints related to his feet and that now he is "in pain daily due to my bilateral foot condition". See May 2015 Correspondence. It is clear in this case that the Veteran has a current bilateral foot condition. See e.g. April 2021 Compensation and Pension Examination. In regard to the alleged in-service foot complaints, the Board acknowledges that the service treatment records clearly contain multiple foot-related notations including a July 1989 entrance examination noting mild asymptomatic pes planus. In addition, there is a December 1989 service treatment record noting that the Veteran reported with "complaints of pain in backs of feet" for one week with "pain [that] has been persisting" and had led to problems standing for long periods of time. There is also a December 1994 report of medical history prepared in anticipation of separating from military service on which the Veteran checked "yes" to the inquiry of whether he had foot trouble. It was noted that he had arch pain in the left foot for about a month. Nonetheless, the Board concludes as outlined in detail below that, although the Veteran has a current diagnosis of a bilateral foot condition and is credible in his statements that he had in-service foot issues, the preponderance of the evidence weighs against finding that the Veteran has a current foot condition that began during service or is otherwise related to or was aggravated by an in-service injury, event, or disease. In this case, despite his service treatment records reflecting the above-noted foot issues, a December 1994 Report of Medical Examination obtained in anticipation of release from service revealed that the Veteran had no abnormalities of the feet. Post-service, there are no complaints or treatment related to a condition in either foot for many years. In 2011, over a decade and a half after the Veteran's departure from service, an opinion obtained in conjunction with a request from a VA RO recorded "history as related by the claimant" as including a bilateral foot condition which the Veteran reported "ha[d] existed since 1990. The condition is due to injury; it occurred [and] is attributed to humping, PT'ing, marching while in service, along with running combat boots." However, the examiner did not provide an opinion as to the etiology of the Veteran's condition. The Board notes that the examiner recording the history of the onset of the disability that was provided by the Veteran does not constitute a medical opinion. Regarding a nexus, a VA examiner opined in December of 2012 that it was less likely than not that the Veteran had a foot condition that was caused by or related to service. The only provided rationale was that, "heel spurs and plantar fasciitis are entirely and distinct from either a puncture wound or tinea pedis". Significantly, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In that regard, a VA examiner opined in November of 2019 that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that, "during his entrance exam on 07/31/1989, his examiner documented mild asymptomatic pes planus. Since he had pes planus upon entrance into military service, his pes planus was not caused by military service. Although he was diagnosed with bilateral plantar fasciitis in 2011, today's foot exam did not reveal any evidence of plantar fasciitis. Plantar fasciitis is inflammation of the thick band of tissue at the bottom of the foot that runs from the heel to the toes. It can cause intense pain in the heel as well as the entire sole of the foot and is worse with the first steps in the morning and after rest periods. It improves with activity. The veteran specifically denies morning foot pain or foot pain after rest periods, which rules out the diagnosis of plantar fasciitis. Right foot x-rays on 08/19/2011 showed evidence of a heel spur. Left foot x-rays on 08/19/2011 showed a normal left foot. Since he already had pes planus upon entrance into military service, it is less likely than not that the veteran's bilateral pes planus was caused by bilateral plantar fasciitis, heel spur and pes planus during service. No nexus has been established for bilateral pes planus. No evidence was found in his service treatment records that he was diagnosed with heel spurs or plantar fasciitis during service. Therefore, it is less likely than not that his right heel spur was caused by bilateral plantar fasciitis, pes planus and heel spur during service. A nexus has not been established." In regard to the Veteran's pes planus, the Board notes that a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304 (b). In the present case, pes planus was noted on entrance exam. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Evidence of the Veteran being asymptomatic on entry into service, with a temporary exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). Based on the foregoing, the Board determined in September of 2020 that an additional remand was warranted because no VA examiner had yet considered the evidence of record and opined whether the Veteran's pre-existing pes planus was aggravated by service. Of note, the Veteran's service treatment records contain a clear notation of "mild asymptomatic pes planus" at entry. In accordance with the September 2020 Board remand, a VA examiner determined that the "claimed [pes planus] condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner rationalized that, "temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing bilateral pes planus. A thorough review of the evidence fails to support that the Veteran's pre-existing condition of pes planus was permanently aggravated by service. Entrance examination from 7/1989 indicates mild, asymptomatic pes planus whereas final examination from 12/1994 indicates normal bilateral foot examination. According to the objective evidence, Veteran was not seen for bilateral foot pain from 1994 until 2011 (17 years after Veteran's time in the service). Furthermore, the current status of Veteran's diagnosis of pes planus is typical of natural disease progression. A nexus has not been established." The VA examiner also explicitly considered the Veteran's assertions in stating that, "regarding Veteran's lay statement of having to buy insoles for condition, insoles are a common treatment modality for diagnosis of pes planus and are typically needed for condition. Regarding Veteran being seen in 1989 for pain in the back of feet x1 week that had persisted and Veteran's statement at the time that he had problems with standing for a prolonged period of time, Veteran was diagnosed with blisters/cellulitis at the time which is an acute skin condition that resolved. Regarding the December 1994 final examination where Veteran subjectively reported foot trouble along with left foot arch pain x1 month, the objective examination at the time was normal and the objective evidence indicates that foot trouble got better as Veteran was not seen again for foot pain until 2011 which was 17 years after his time in the service." In this case, after a thorough review of the record, the Board finds that the evidence of record affirmatively indicates that the Veteran's claimed foot condition disability was not caused, aggravated by, or otherwise related to an in-service injury, disease or event. In making this determination, the Board has considered the assertions made by the Veteran. The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as foot discomfort and pain. See Jandreau, 492 F.3d 1372. The Veteran's statements are competent evidence to report his foot-related symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). The Board acknowledges that the Veteran may sincerely believe that he has pes planus that was aggravated beyond its natural progression by his active duty service. The Board also acknowledges the Veteran's belief that his other identified foot related-issues (that collectively manifest in his claimed foot-related condition along with pes planus) were caused by this service, but he unfortunately has not demonstrated he possesses the requisite medical education, training, or experience, to make such a medical determination. See 38 C.F.R. § 3.159. The above-referenced opinions provided by VA examiners in this case represent highly probative evidence as each relied on sufficient facts and data, provided a rationale for the opinion, and contained sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board reiterates that the medical opinions of record in this case, even when they contain insufficient rationale, also indicate that there is no nexus between the Veteran's asserted bilateral foot condition and his active duty service. The Board has weighed the lay and medical evidence and finds more probative the objective opinions rendered by medical professionals given their expertise in evaluating the nature and etiology of foot-related conditions. The Board also notes that certain chronic disabilities, including arthritis, are presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). To the extent that arthritis has been noted in the Veteran's VA records in regard to the feet, there is no evidence that this condition developed to a compensable level (at least 10 percent) within one year of discharge to be considered under presumptive service connection. In contrast, the Board reiterates that there is no evidence of any foot-related conditions for several years after his departure from active duty. Further, while the Board has considered whether service connection is warranted under a continuity of symptomatology theory of entitlement, it also notes that to establish this, the evidence must show that a condition was "noted" in service, continuous post-service symptomatology, and competent evidence of a nexus between the present disability and that post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997) (overruled on other grounds). In this case, the Board reiterates that in contrast with continuous post-service symptomatology, there was none reported for several years after the Veteran's departure from active duty. (Continued on the next page) Collectively, the Board reiterates that the evidence of record indicates that the Veteran's current bilateral foot condition, even to the extent of manifesting in the form of arthritis, onset at the earliest over one and a half decades after his departure from active duty, a factor that weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The most probative evidence of record does not show an etiological relationship between the Veteran's post-service diagnoses and an in-service injury, event or illness. Further, the evidence of record in this case collectively indicates that neither of the Veteran's claimed respective foot conditions is related to his military service. As the preponderance of the evidence is against the respective claims for service connection for a bilateral foot condition, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.