Citation Nr: 21041609 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-23 186 DATE: July 9, 2021 ORDER Service connection for mild arthritis, right knee is denied. Service connection for mild osteoarthritis of the lumbar spine (back disability) is denied. Service connection for neuropathy, right foot as secondary to mild osteoarthritis of the lumbar spine is denied. Service connection for neuropathy, left foot as secondary to mild osteoarthritis of the lumbar spine is denied. REMANDED Entitlement to total disability individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee arthritis is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of separation. 2. The Veteran's back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of separation. 3. The Veteran's neuropathy of the right and left foot is not secondary to any service-connected condition and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for back condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for right foot neuropathy due to back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for left foot neuropathy due to back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Marine Corps from September 1971 to August 1975. The issues are on appeal from an April 2015 rating decision. In March 2020, the Veteran testified before the undersigned in a hearing. A copy of the transcript has been associated with the claims file. The Board of Veterans' Appeals (Board) remanded the appeals for additional development in April 2020. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the United States Court of Appeals for Veterans Claims (Court) has held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. The provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the diseases listed in section 3.309(a). Service connection may be demonstrated by showing direct service incurrence or aggravation, as discussed above, or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some disease on the other hand are chronic, per se, such as arthritis, and therefore will be presumed to have been incurred in service although not otherwise established as such, if manifested to a degree of 10 percent or more within one year after separation. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Service connection for right knee arthritis The Veteran seeks service connection for right knee arthritis. Specifically, he contends that his right knee arthritis is due to an injury during his daily six mile runs while stationed at Camp Lejeune. Turning to the evidence, the Veteran's service treatment records demonstrate multiple complaints of and treatment for right knee issues. In December 1974, the Veteran complained of pain for the past day in his right knee which started while running. He was diagnosed with suspected mild bursitis. The Veteran returned several times to complain of right knee pain until February 1975, where he stated that his knee had been doing well and he was on light duty for a week. In July 1975, the Veteran underwent an orthopedic consultation where he complained of lateral right knee pain. The Veteran's July 1975 separation evaluation showed no reports of nor diagnosis of right knee pain or condition. Post-separation, VA and private medical records demonstrate complaints of and treatment for right knee arthritis after September 2009, when the Veteran was hit by a car while he was biking to work. As a result of the September 2009 motor vehicle accident, the Veteran suffered subsequent right knee pain. A private treatment note from his treating orthopedic surgeon noted reviewed an x-ray taken in October 2009 after the September 2009 motor vehicle accident and diagnosed the Veteran with right knee medial meniscus tear. The Veteran was afforded a VA examination for his right knee in May 2010. The Veteran confirmed experiencing flare-ups which occurred approximately three times a day and lasted for an hour each time. The examiner observed the Veteran demonstrated normal gait, no hesitation or apprehension especially with pain when rising or sitting in a chair, undressing easily, and no slowed movements. The examiner diagnosed the Veteran with mild arthritis of the right knee after physical evaluation and x-ray review. Two treating orthopedic surgeons submitted letters in January 2014. Each provided opinions on the Veteran's employability status, and importantly, noted that the Veteran's right knee arthritis was due to his 2009 motor vehicle accident. In September 2020, an addendum VA opinion on etiology was obtained. The examiner acknowledged that the Veteran's right knee had been evaluated on numerous occasions during active duty. Radiographs taken after the initial right knee injury had normal results and a working diagnosis of bursitis was given, although no concrete diagnosis was rendered by an orthopedic physician and no evidence of resolution of pain prior to separation was noted. Prior to the 2009 motor vehicle accident, the Veteran denied feeling right knee pain suggesting that the knee pain from his active duty had resolved. The examiner noted that after active duty, an MRI taken after his 2009 motor vehicle accident showed a small meniscus tear with no other notable findings and right knee radiograph was obtained in conjunction with his May 2010 VA examination, showing typical wear and tear (mild degenerative changes) consistent with the Veteran's age and obesity. Therefore, the examiner found that the Veteran's right knee arthritis was less likely than not due to an in-service injury or incident such as the December 1974 right knee injury. Based on the above, the Board finds that service connection for right knee arthritis is not warranted. The Board does not dispute that the Veteran has a current diagnosis. His in-service medical records demonstrate a right knee injury in December 1974 with subsequent complaints of pain until February 1975 where he stated that his right knee was doing well. In July 1975, the Veteran went to an orthopedist and complained of right knee pain. However, on his July 1974 separation evaluation, complaints of and diagnosis of a right knee disability is not noted. Post-separation, the Veteran did not seek treatment for a knee condition until he was involved in a motor vehicle accident in September 2009. From then, the bulk of the medical evidence demonstrates that the Veteran's right knee arthritis is due to a September 2009 motor vehicle accident. This includes the two January 2014 letters from his treating orthopedic surgeons who opine on the Veteran's employability and state that his right knee arthritis stems from the September 2009 motor vehicle accident. At no point does VA or private medical evidence reveal an etiological opinion stating that the Veteran's knee condition is related to his in-service right knee injury. The Board notes that the Veteran is competent to comment on any symptoms, such as pain, and competent to report on personal observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that while the Veteran clearly believes that he has a right knee arthritis as a result of his active duty, any relationship between the current back disability and symptoms experienced over the years must be established by medical evidence. Here, the September 2020 VA examiner explained that the Veteran's denial of right knee pain until his September 2009 motor vehicle accident is indicative of the in-service right knee injury having resolved. Furthermore, x-rays taken with the May 2010 VA examination shows mild degenerative changes of the right knee which is more consistent with normal wear and tear due to age as well as the Veteran's obesity. Thus, as a layperson without any medical training and expertise, the Veteran is not qualified to render a medical opinion regarding the etiology of the degenerative changes affecting his right knee. Furthermore, based on the evidence, the Veteran first complained of right knee pain in September 2009, or more than 30 years after separation. This was also triggered because he had injured his back in the September 2009 motor vehicle accident. The Board notes that the Veteran was hit by a car while riding his bike to work an activity which he regularly did in lieu of driving and one involving knees. Therefore, continuity of symptomatology has not been demonstrated, there is no nexus or causal link between the Veteran's active duty and his current right knee arthritis, as the probative medical evidence does not support this theory and there exists no medical opinions to the contrary. In summary, the probative evidence is against the Veteran's claim for service connection for right knee arthritis. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is denied. 2. Service connection for back disability 3. Service connection for right foot neuropathy as secondary to mild osteoarthritis of the lumbar spine 4. Service connection for left foot neuropathy, as secondary to mild osteoarthritis of the lumbar spine Going forward, the claims of neuropathy, right and left foot as secondary to mild osteoarthritis of the lumbar spine, will be grouped together and referred to as "bilateral foot neuropathy" for brevity. The Veteran seeks service connection for a back disability. Specifically, he contends his back pain began during service as a result of unloading vehicles and the back pain had continued ever since. Additionally, the Veteran seeks service connection for bilateral foot neuropathy and explicitly stated that his bilateral foot neuropathy is due to his back condition. Therefore, the possibility of direct service connection for bilateral foot neuropathy will not be discussed in the analysis below. Finally, the Board notes that while the Veteran is service-connected for tinnitus, the Veteran has explicitly asserted that his bilateral feet neuropathy is due to his back condition, and therefore, secondary service connection due to tinnitus will also not be considered. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511. The Board concludes that, while the Veteran has a diagnosis of arthritis of the spine, the latter of which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period and was not noted in service with attributable continuity of symptomatology, nor is it directly related to active duty service. Turning to the evidence, service treatment records demonstrate complaints of and treatment for back issues. In May 1975, the Veteran complained of sharp back pain in the small of his back with bending and lifting since injury earlier that month. The physician noted increased pain with ambulation and on physical evaluation, noted apparent scoliosis on the left. The Veteran was diagnosed with muscle strain. The Veteran's July 1975 separation evaluation shows no report of back issues from the Veteran nor the evaluator. Post-separation, VA and private treatment records indicate issues with the Veteran's back. The earliest notation of back condition is an April 2007 VA consult, when the Veteran reported that he had slipped and fallen at work a week prior, and hurt his back. In September 2009, the Veteran was hit by a car while he was biking to work. A private physician, Dr. A.C., noted that the Veteran's medical history was significant for low back injuries sustained in other motor vehicle accidents and treated by the treating physician in September 1986 and February 1999 and resulted in full recovery. As a result of the September 2009 motor vehicle accident, the Veteran was diagnosed with lumbar spine/strain. He was unable to return to work as a greeter at Walmart since the September 2009 accident. The Veteran was afforded a May 2010 VA examination for his spine. He reported that he experienced "sharp and shocky" back pain every morning and that he experienced prickly feelings down his legs. He also confirmed experiencing flare-ups around once a month, with the flare-ups lasting two to three days at a time. The Veteran had been working as Walmart greeter for the last two years, which is a seated position. The examiner observed that the Veteran walked with normal gait until realizing that attention was on him, upon which, his gait became antalgic. He had a sunburn over his entire back and top aspect of his buttocks the Veteran said that he had helped his friend paint an entire deck over the weekend. Additionally, the examiner noticed that the Veteran sat down without any guarding or apprehension; that upon undressing for the examination, his movements were not apprehensive nor guarded; and that he was able to move with ease and undress rather quickly. Upon physical evaluation, the Veteran demonstrated unremarkable inspection of the lumbar spine other than a palpated spine. The Veteran's sensory examination was completely intact and there were no neurological deficits noted in either of his bilateral lower extremities. In November 2012, the Veteran described an electrical feeling of sizzling going down the back of his legs and spasms to his toes to a physician evaluating him for worker's compensation. The Veteran underwent low back surgery with his private orthopedic surgeon, Dr. V.K., in January 2013 due to severe back pain, herniated disks, and lumbar radiculopathy in the left with neurological deficits. Dr. V.K. noted that the Veteran had injured his back at work. Two treating orthopedic surgeons submitted letters in January 2014. Each provided opinions on the Veteran's employability status, and importantly, noted that the Veteran's back condition was due to his 2009 motor vehicle accident. In August 2014, the Veteran submitted a statement regarding his low back and bilateral foot neuropathy based on conversations he had had with his treating physicians. Here, he explained that while unloading a vehicle, his right knee buckled, and he felt a sharp pain in his low back going down his leg to the rear of the right knee. The Veteran was unable to straighten up. He was subsequently diagnosed with a muscle pull and prescribed a muscle relaxer. The Veteran wrote that a physician diagnosed him with lax ligaments after active duty, and the amount of disc degeneration and condition clearly indicates that it was an existing condition from active duty, which was aggravated by his 2009 motor vehicle accident. Additionally, the Veteran contends that because his back injury was not properly diagnosed nor treated during active duty, he suffered from bilateral foot neuropathy. An October 2019 VA consult stated that the Veteran's 2012 lumbar fusion resulted in no improvement in neuropathy or neuropathic foot pain. In September 2020, an addendum etiology opinion was obtained. The examiner thoroughly reviewed the Veteran's claims file, including his medical records. He noted the diagnosis of back muscle strain in the Veteran's service treatment records; and stated that there was no evidence in the record that pain had resolved prior to separation. The examiner observed that there was no indication of back pain until 2007 when the Veteran injured his back at a fall during work. In addition, the examiner discussed the 2009 motor vehicle accident, which added injury to the Veteran's back. Ultimately, the examiner opined that the Veteran's back condition was less likely than not due to an in-service injury or incident, to include the incident causing the Veteran's in-service back muscle strain, as the Veteran had at least three of the recognized risk factors for lumbar degenerative disc disease: obesity, physically demanding occupation, smoking, and genetics. Further, lumbar degenerative disc disease is not a natural progression of the paralumbar muscle strain incurred in and diagnosed during active duty. In October 2020, the Veteran underwent a VA examination for his bilateral foot neuropathy. The examiner continued the Veteran's diagnosis of bilateral foot neuropathy and noted that the Veteran's extensive back issues and injures were well-documented. However, the examiner explained that the Veteran's mild muscle strain sustained during active duty was not the proximate cause of his bilateral foot neuropathy as a back muscle strain does not cause nerve damage in and of itself. In the intervening 34 years between the diagnosis of muscle strain and the development of neuropathy, the examiner noted that the record was silent for any documented attempts to seek care for a worsening lower back or neuropathic issues with the Veteran's feet. The Veteran endured three motor vehicle accidents, one assault, and a fall at work. The examiner opined that these post-separation incidents were more likely the proximate cause of the Veteran's bilateral foot neuropathy, and the bilateral foot neuropathy was most likely related to the Veteran's back condition. Based on the above, the Board finds that service connection for back condition is not warranted. The Board does not dispute that the Veteran has a current diagnosis. However, the medical evidence demonstrates that other than the May 1975 diagnosis of back muscle strain during active duty, the remainder of his service treatment records including his July 1975 separation evaluation, are silent for complaints of, diagnosis of, or treatment for a back condition. Post-separation, the Veteran did not seek treatment for a back condition until he fell at work in April 2007. From then, the bulk of the medical evidence demonstrates that the Veteran's back condition is due to a September 2009 motor vehicle accident. This includes the two January 2014 letters from his treating orthopedic surgeons who opine on the Veteran's employability and state that his back condition stems from the September 2009 motor vehicle accident. At no point does VA or private medical evidence reveal an etiological opinion stating that the Veteran's back condition is related to his in-service back muscle strain. The Board notes that the Veteran is competent to comment on any symptoms, such as pain, and competent to report on personal observations. See Jandreau, 492 F.3d at 1372; Washington, 19 Vet. App. at 368. However, the Board finds that while the Veteran clearly believes that he has a low back disability as a result of his active duty, any relationship between the current back disability and symptoms experienced over the years must be established by medical evidence. Here, the October 2020 VA examiner explained that the Veteran had three out of four risk factors for lumbar degenerative disc disease: obesity, physically demanding occupation, smoking, and genetics, and that lumbar degenerative disc disease is not a natural progression from a back muscle strain. Thus, as a layperson without any medical training and expertise, the Veteran is not qualified to render a medical opinion regarding the etiology of the degenerative changes affecting his back. Furthermore, based on the evidence, the Veteran first complained of back pain in April 2007, or more than 30 years after separation. This was also triggered because he had injured his back. Therefore, continuity of symptomatology has not been demonstrated, there is no nexus or causal link between the Veteran's active duty and his current back condition, as the probative medical evidence does not support this theory and there exists no medical opinions to the contrary. Regarding the Veteran's service connection claim for bilateral foot neuropathy due to his back condition, the medical evidence confirms a diagnosis of bilateral foot neuropathy. However, the Veteran has asserted that his bilateral foot neuropathy is solely due to his back condition and the medical evidence shows that physicians and the October 2020 VA examiner agree that the bilateral foot neuropathy is secondary to his back condition. However, as discussed above, the Veteran's back condition does not warrant service connection, is therefore not service-connected, and the second prong of Wallin has not been satisfied. The Veteran's service connection claim for bilateral foot neuropathy due to his back condition must be denied. In summary, the probative evidence is against the Veteran's claim for service connection and bilateral foot neuropathy due to his back condition. As the preponderance of the evidence is against his claims, the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49. Accordingly, the appeals are denied. REASONS FOR REMAND Entitlement to a TDIU is remanded The Veteran asserts that he is entitled to a TDIU. Specifically, he contends that a TDIU is warranted based on his service-connected tinnitus and the disabilities denied in the service connection section above. The Veteran is service-connected for only one disability tinnitus, rated as 10 percent disabling. Therefore, the combined service-connected disability rating is only 10 percent. 38 C.F.R. §§ 4.16(a), 4.25. It follows the Veteran has not met the schedular percentages for a TDIU and thus, a TDIU is not warranted. 38 C.F.R. § 4.16(a). As the Veteran does not meet the schedular requirements for a TDIU, the only remaining questions is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001). It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16 (b). The Veteran was afforded a Disability and Benefits Questionnaire to evaluate his tinnitus in May 2013. The examiner noted the Veteran's report that he found it difficult to hear over the level of his own tinnitus, stating that his tinnitus caused him to be distracted and irritable. The Veteran also complained that it was difficult for him to fall asleep and occasionally he woke up from sleep due to his tinnitus. However, the examiner failed to fill Section 6, "Individual Unemployability Statement." Therefore, on remand, the Veteran should be scheduled for an additional VA examination and an opinion on the functional limitations he experiences due to his tinnitus, and its effect on his potential employability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to assess the current severity of his service-connected tinnitus. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected tinnitus on employment. The examiner should identify all limitations or functional impairment caused solely by his service-connected tinnitus. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.