Citation Nr: 21041626 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-26 404 DATE: July 9, 2021 ORDER Service connection for bilateral pes planus is granted. Service connection for left knee disability, to include degenerative changes, is denied. Service connection for right knee disability, to include degenerative changes, is denied. Service connection for lumbar spine disability, to include degenerative disc disease, is denied. Service connection for cervical spine disability, to include degenerative disc disease, is denied. FINDINGS OF FACT 1. The Veteran's bilateral pes planus was noted at service entry, and increased severity during active service is demonstrated; the evidence is not clear and unmistakable that the increased severity during active service was due to the natural progression of bilateral pes planus. 2. The Veteran's left knee disability, to include degenerative changes, was not manifest during active service or within the first year after service; and is not attributable to service or to service-connected disease or injury. 3. The Veteran's right knee disability, to include degenerative changes, was not manifest during active service or within the first year after service; and is not attributable to service or to service-connected disease or injury. 4. The Veteran's lumbar spine disability, to include degenerative disc disease, was not manifest during active service or within the first year after service; and is not attributable to service or to service-connected disease or injury. 5. The Veteran's cervical spine disability, to include degenerative disc disease, was not manifest during active service or within the first year after service; and is not attributable to service or to service-connected disease or injury. CONCLUSIONS OF LAW 1. Bilateral pes planus was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Left knee disability, to include degenerative changes, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. Right knee disability, to include degenerative changes, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 4. Lumbar spine disability, to include degenerative disc disease, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 5. Cervical spine disability, to include degenerative disc disease, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1967 to August 1970. He timely appealed these matters from a February 2014 rating decision. In November 2018, the Veteran and his wife testified during a video conference hearing before the undersigned. In April 2019, the Board of Veterans' Appeals (Board) remanded the matters for additional developmentincluding examinations and opinions. Here, substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). 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 that are subject to lay observation. 38 U.S.C. § 1153(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) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Bilateral Foot Disability On a "Report of Medical History" completed by the Veteran at the time of enlistment in active service in February 1967, the Veteran checked "no" in response to whether he ever had or now had foot trouble. However, the examiner noted "pes valgo planus, moderate degree, L2." The Board finds this notation sufficient to rebut the presumption of soundness; pes planus was noted on examination for entry onto active duty. Service treatment records include complaints of and treatment for a variety of foot ailments, including left heel cellulitis, calcaneal tendonitis, and pes planus retro achilles pain and biplane arch in April 1967; infected blisters on foot in August 1967; swollen feet and bilateral tinea pedis in May 1970; and pes planus in August 1970. Clinical evaluation at the time of the Veteran's separation examination in August 1970 revealed abnormal feet, described as pes planus. Post-service records show that the Veteran sought treatment from a podiatrist for his bilateral foot disability in 1996, and that he obtained inserts for his shoes. X-rays taken in June 2003 revealed a large heel spur on left foot, as well as flatfoot condition with mid-tarsal fault. The podiatrist noted that, over the long term, surgical intervention for excision of heel spur as well as fusion of the midtarsal joint may be needed because of severe flatfoot. Permanent orthotics were casted in June 2003. The questions remaining are whether the pre-existing condition worsened during service; and if so, whether the presumption of aggravation is rebutted by clear and unmistakable evidence that the worsening was due to the natural progression of the disease. In July 2013, a VA examiner noted the Veteran's in-service treatment in foot clinic in April 1969 and noted the Veteran was given arch supports during active service. Signs and symptoms of pes planus in July 2013 included pain on use of feet and characteristic calluses; symptoms were relieved by arch supports. There was decreased longitudinal arch height on weight-bearing, and the weight-bearing line fell over or medial to the great toe. There was no objective evidence of marked deformity of either foot. Following examination, the July 2013 VA examiner opined that the Veteran's pes planus was not aggravated beyond its natural progression in active service because there was no evidence of in-service injury, event, or illness. In this regard, the Veteran contended that the in-service injury, event, or illness in active service was his having to wear boots that were too small for his feet during boot camp. Since then, VA foot examination in September 2014 revealed no callouses. The Veteran walked with a steady gait in June 2015. X-rays of left foot and ankle in September 2018 revealed evidence of remote trauma at the medial and lateral malleoli, and was suggestive of hindfoot valgus on non-weightbearing study. X-rays of right foot and ankle in September 2018 revealed evidence of remote trauma to the medial malleolus, and moderate-to-advanced osteoarthrosis at the first tarsometatarsal joint; and was suggestive of pes planus on non-weightbearing study. In November 2018, the Veteran testified that he was told to fill his boots with water overnight in order to stretch the leather. He testified that he wore a size 12 shoe and was given a size 10 12 boot. During the four-and-one-half months of boot camp, his toenails were removed because of ingrown toenail. Blisters on his feet became infected with cellulitis, and his boots put pressure on the Achilles tendon. The Veteran bought a new pair of boots at his first duty station. He testified that while the blisters did heal, he continued to have foot problems. Following the Board's April 2019 remand, the Veteran underwent another VA examination in December 2019. The examiner noted that the Veteran's bilateral pes planus existed prior to active service and was noted at the time of his separation from active service. The examiner found no documentation that the Veteran was issued ill-fitting shoes or that he sought relief for ill-fitting shoes during active service. The examiner also commented that service treatment records were "silent for evaluation of or treatment for pes planus" during active service. Examination in December 2019 revealed objective evidence of marked deformity of both feet. There also was marked pronation of both feet. Other than pes planus, the examiner found no other foot injuries or foot conditions. Manipulation of the feet did not elicit significant tenderness. No swelling of feet was noted. The Veteran was status-post toenail avulsion of second digits of both feet, and partial toenail avulsion of right great toe. Degenerative or traumatic arthritis of both feet was noted. Following the examination, the December 2019 examiner opined that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support of the opinion, the examiner reasoned that the Veteran has had pes planus since childhood and that he just started using arch supports in in 2003that is, 33 years after active duty service. This does not support a finding of aggravation in active service beyond normal progression because the Veteran could have obtained arch supports at any time. To the contrary, the Board notes that the December 2019 examiner noted that various foot ailments were documented during active service. The Veteran had no treatment for pes planus prior to active service. The Board specifically finds that service treatment records were not "silent" for evaluation or treatment for pes planus. As noted above, the July 2013 VA examiner indicated that the Veteran was given arch supports during active service. Further, the Veteran has competently and credibly testified as to worsening of his symptoms in active service. He reportedly had not sought treatment following service because he did not have a family physician. The dispute, therefore, is as to whether such increase in disability was due to the natural progression of the condition that pre-existed active service. By law, it is presumed that the aggravation is due to service unless shown by VA to clearly and unmistakably be due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. This burden has not been met. Of the two VA examiners to address the question, the July 2013 examiner applied a lesser standard of proof and the opinion cannot be given any probative value. The December 2019 examiner did apply the correct standard, and found the increase in severity of pes planus as due to natural progression, but the Board finds such conclusions incompatible with the cited evidence. The December 2019 examiner reasoned that the Veteran had not sought arch supports until 33 years after service, which does not support a finding of aggravation during active service. To the contrary, the July 2013 examiner noted that the Veteran was treated in the foot clinic and given arch supports in active service. Such contradictory evidence does not reflect clear and unmistakable evidence of natural progression of pes planus, versus aggravation. The Board does not find this December 2019 VA opinion credible. Accordingly, the presumption of aggravation of a pre-existing disability is not rebutted, and service connection for bilateral pes planus is warranted. Left Knee and Right Knee The Veteran contends that his disabilities of left knee and right knee, to include degenerative joint disease, had their onset in active service. He testified to falling down a ladder aboard ship and smacking both knees on side of ladder, and having knee problems since then. He later was treated in pain clinics and had injection shots in both knees. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). His service treatment records show that the Veteran reported to sickbay in April 1969 with complaints of soreness of left patella. There were small abrasions at the site. The Veteran had hit his knee on side of ladder after tripping. Examination revealed full ranges of motion with no apparent soreness except to active stimulation. Treatment consisted of an "Ace wrap;" the Veteran was to return the next morning if any complications. There were no further findings nor further complaints of knee trouble of any sort in active service. Clinical evaluation at the Veteran's separation examination in August 1970 showed normal lower extremities. Social Security records show a diagnosis of degenerative joint disease of left knee in June 2012. VA records show an assessment of bilateral knee arthritis in June 2018. The Veteran underwent a left total knee replacement in February 2019. A December 2019 VA examination report includes diagnoses of degenerative joint disease of bilateral knee and status-post left total knee replacement. Following examination, the examiner opined that disabilities of left knee and right knee were less likely than not caused by or a result of in-service events. In support of the opinion, the examiner reasoned that there was no documentation from service treatment records to support the Veteran's contention of a nexus between his current knee conditions and active service. The examiner commented that the Veteran worked in construction after service, which was physically strenuous and labor intensive and which placed increased stress on his knees. The December 2019 examiner also opined that current disabilities of left knee and right knee were less likely as not caused by or a result of the pre-existing pes planus or of any various acute and transient conditions evaluated during active service. The examiner explained that the Veteran's pre-existing pes planus neither contributed to nor caused his current disabilities of left knee and right knee. Here, there is no evidence of arthritis of either knee within the first year after service. Degenerative joint disease of each knee was noted decades after service. In this regard, a continuity of symptomatology of arthritis of each knee is not established. Walker, 708 F.3d at 1338-39. To date, the Veteran submitted no evidence or information linking active service to the currently diagnosed degenerative joint disease of each knee. While he may fervently believe in such a connection, as a layperson the Veteran lacks the competence to render a nexus opinion on such a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As noted above, no disability of either knee was shown at the Veteran's separation examination. As the evidence does not support any finding of a nexus between the Veteran's in-service fall on a ladder in April 1969 and current degenerative joint disease of each knee, entitlement to the benefit sought is not warranted. Regarding secondary service connection, the Board finds the December 2019 opinion and rationale to be persuasive. The examiner clarified that bilateral pes planus neither caused nor aggravated the Veteran's disabilities of each knee. The December 2019 opinion is given a high degree of probative value; it is consistent with the evidence of record and uncontradicted. There is no evidence demonstrating causation or aggravation by a service-connected disability to warrant a grant of secondary service connection. Specifically, the competent evidence does not relate the Veteran's disabilities of each knee to the service-connected bilateral pes planus. In short, the evidence weighs against granting service connection for disabilities of left knee and right knee, to include degenerative joint disease. The benefit-of-the-doubt rule does not apply, and each of the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lumbar Spine The Veteran seeks service connection for lumbar spine disability. Recent records show a diagnosis of degenerative disc disease of lumbar spine. His service treatment records do not reflect any findings or complaints of low back pain. Nor is there evidence of trauma or injury to the Veteran's lumbar spine in active service. There is no evidence of treatment in active service for any lumbar pain. Clinical evaluation of the Veteran's spine was normal at his separation examination in August 1970. Here, the evidence does not show that a lumbar spine disability had its onset in active service, or that degenerative arthritis of lumbar spine manifested within one year after the Veteran's separation from active service. As such, he is not entitled to direct or presumptive service connection. Social Security records show complaints of chronic low back pain with bilateral leg pain and weakness in June 2012. MRI scans of the lumbosacral spine at that time show degenerative changes with stenosis at L3-L4 and L4-L5. In June 2013, the Veteran reported that he was treated for low back problems with bowel spasms; and that he had to retired from a bus driving job due to lower back pain. In July 2013, he had a lumbar injection in the pain clinic. VA records show an assessment of chronic low back pain in February 2017. In November 2018, the Veteran testified that he was diagnosed with degenerative disc disease and arthritis of lumbar spine in 2012. He continued to take pain medication and to receive treatment from a chiropractor. He testified that he walked with a limp, which affected his lumbar spine. During a December 2019 VA examination, the Veteran reported a medical history of his lumbar spine "locking upon each side." It tightened up when he walked because he was "not walking straight." His low back problems worsened in recent years. He received physical therapy and used a vibrator for massage and heat to the lumbar spine. He reported flare-ups with walking and sitting. X-rays taken in 2016 revealed arthritis. Current X-rays revealed slight grade 1 anterolisthesis of L4 on L5, minimal anterior spondylolisthesis at L4, as well as multilevel disc space narrowing and endplate osteophytes. Following examination in December 2019, the examiner opined that the Veteran's degenerative disc disease of lumbar spine was less likely than not incurred in or caused by active service. In support of the opinion, the examiner reasoned that service treatment records had no documentation to substantiate the Veteran's contention of a nexus to active service. Nor was the Veteran's lumbar spine disability caused by or a result of bilateral pes planus, or caused by or a result of any of the various acute and transient conditions which were evaluated during active service. While the Veteran is competent to describe his symptoms, here, the evidence does not reveal any lumbar spine problems or injury in active service. There was no evidence of chronicity of care since service. Degenerative changes of lumbar spine first were noted decades after service. In this regard, a continuity of symptomatology of degenerative arthritis of lumbar spine is not established. Walker, 703 F.3d at 1338-39. Regarding secondary service connection, the Board finds the December 2019 opinion and rationale to be persuasive. The examiner clarified that bilateral pes planus neither caused nor aggravated the Veteran's lumbar spine disability. There is no evidence demonstrating causation or aggravation by a service-connected disability to warrant a grant of secondary service connection. The opinion is consistent with the evidence of record and uncontradicted. Specifically, the competent evidence does not relate the Veteran's lumbar spine disability to the service-connected bilateral pes planus. The December 2019 examiner also opined that the Veteran's lumbar spine disability was neither caused by nor a result of disabilities of left knee and right knee. As show above, service connection has not been established for disabilities of either knee. Hence, secondary service connection is not warranted. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis of a current disability or to link such to active service, as this is beyond the capacity of a lay person to observe. Here, the competent medical opinions of record regarding the etiology of lumbar spine disability are against the claim. In short, the preponderance of the evidence is against granting service connection for lumbar spine disability. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Cervical Spine The Veteran seeks service connection for cervical spine disability. Recent records show a diagnosis of degenerative disc disease of cervical spine. His service treatment records do not reflect any findings or complaints of cervical pain. Nor is there evidence of trauma or injury to the Veteran's cervical spine in active service. There is no evidence of treatment in active service for any cervical pain. Clinical evaluation of the Veteran's spine was normal at his separation examination in August 1970. Here, the evidence does not show that a cervical spine disability had its onset in active service, or that degenerative arthritis of cervical spine manifested within one year after the Veteran's separation from active service. As such, he is not entitled to direct or presumptive service connection. Social Security records reveal a diagnosis of cervical spondylosis in May 2013. The Veteran underwent physical therapy for cervical pain in July 2013. At that time, he reported the onset of cervical pain "since last year" from driving a bus. He was put on light duty in April and had physical therapy with no improvement. In June, while at work, a ladder fell on his back; he still had pain and restriction of movement in his neck and was unable to return to work. The Veteran was on short-term disability until September 2013, and recently received injection shots in the cervical spine with some relief. In November 2018, the Veteran testified that he was diagnosed with degenerative disc disease and arthritis of cervical spine in 2012. He continued to take pain medication and to receive treatment from a chiropractor. During a December 2019 VA examination, the Veteran reported a medical history of injuring his upper back and shoulder and neck and arm in 2012. In May 2013, a ladder fell on his spine at work; his neck was "really stiff" when turning his head. MRI scans of cervical spine in July 2013 revealed moderate multi-level degenerative disc disease. The Veteran then underwent physical therapy for cervical spondylosis. He later strained his neck by lifting something heavy in February 2018, and reported ongoing pain. Current X-rays revealed slight grade 1 anterolisthesis of C4 on C5, as well as moderate degenerative changes of the cervical spine. Following examination in December 2019, the examiner opined that the Veteran's degenerative disc disease of cervical spine was less likely than not incurred in or caused by active service. In support of the opinion, the examiner reasoned that service treatment records had no documentation to substantiate the Veteran's contention of a nexus to active service. Nor was the Veteran's cervical spine disability caused by or a result of bilateral pes planus, or caused by or a result of any of the various acute and transient conditions which were evaluated during active service. While the Veteran is competent to describe his symptoms, here, the evidence does not reveal any cervical spine problems or injury in active service. There was no evidence of chronicity of care since service. Degenerative changes of cervical spine were noted decades after service. In this regard, a continuity of symptomatology of degenerative arthritis of lumbar spine is not established. Walker, 703 F.3d at 1338-39. Regarding secondary service connection, the Board again finds the December 2019 opinion and rationale to be persuasive. The examiner clarified that bilateral pes planus neither caused nor aggravated the Veteran's cervical spine disability. There is no evidence demonstrating causation or aggravation by a service-connected disability to warrant a grant of secondary service connection. The opinion is consistent with the evidence of record. Specifically, the competent evidence does not relate the Veteran's cervical spine disability to the service-connected bilateral pes planus. Furthermore, the December 2019 examiner opined that the Veteran's cervical spine disability was neither caused by nor a result of the Veteran's disabilities of left knee and right knee and lumbar spine. As show above, service connection has not been established for disabilities of either knee or lumbar spine. Hence, secondary service connection is not warranted. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis of a current disability or to link such to active service, as this is beyond the capacity of a lay person to observe. Here, the competent medical opinions of record regarding the etiology of cervical spine disability are against the claim. The December 2019 opinions are consistent with the evidence of record and uncontradicted. In short, the preponderance of the evidence is against granting service connection for cervical spine disability. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.