Citation Nr: 21043727 Decision Date: 07/19/21 Archive Date: 07/19/21 DOCKET NO. 13-31 705 DATE: July 19, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a respiratory disorder, to include as secondary to a right knee disability is denied. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a right knee disability is denied. Entitlement to service connection for a right shoulder disability, to include as secondary to a right knee disability is denied. Entitlement to service connection for a left shoulder disability, to include as secondary to a right knee disability is denied. Entitlement to service connection for a low back disability, to include as secondary to a right knee disability is denied. Entitlement to service connection for hypertension, to include as secondary to a right knee disability is denied. Entitlement to service connection for a headache disorder, to include as secondary to a right knee disability is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had a right knee disability that clearly and unmistakably preexisted service. 2. The preponderance of the evidence is against finding that a right knee disability began during active service, is otherwise related to an in-service event, injury or disease. 3. The preponderance of the evidence is against finding that a respiratory disorder began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 4. The preponderance of the evidence is against finding that a left knee disability began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 5. The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 6. The preponderance of the evidence is against finding that a right shoulder disability began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 7. The preponderance of the evidence is against finding that a left shoulder disability began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 8. The preponderance of the evidence is against finding that a low back disability began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 9. The preponderance of the evidence is against finding that a hypertension began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 10. The preponderance of the evidence is against finding that a headache disorder began during active service, is otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a left knee disability due to service or a service-connected disability 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 an acquired psychiatric disorder due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a right shoulder disability due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for a left shoulder disability due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for a low back disability due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for hypertension due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 9. The criteria for service connection for a headache disorder due to service or a service-connected disability 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 served on active duty from May 1984 to March 1988. This case has been before the Board multiple times, most recently in January 2020 when it was remanded for additional developments. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran initially claimed entitlement to service connection for depression and treatment records suggest additional psychiatric diagnoses. Thus, the Board has characterized the claim to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection The Veteran seeks service connection for a right knee, respiratory disorder, left knee, right and left shoulders, acquired psychiatric disorder, hypertension, and a headache disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). 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 or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Right Knee Disability The Veteran asserts that her right knee disability is due to an in-service fall on ice where she twisted her knee. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). To rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In a November 1983 pre-service applicant medical screening form the Veteran reported she had sprained her knee prior to entrance into service, at age 18; however, it is not shown by clear and convincing evidence that the Veteran had a right knee disability that existed prior to service. The Veteran specifically noted in the November 1983 prescreening form that her knee problem had resolved, no knee defects or diagnoses were noted on her December 1983 service enlistment examination, and her lower extremities were clinically evaluated as normal. Additionally, the October 2020 VA examiner opined that it was less likely than not that the Veteran's right knee disability clearly and unmistakably existed prior to her entrance onto active duty service, based on her report that it had resolved and that no knee disability was noted on induction. Accordingly, the Veteran is presumed sound. Therefore, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of a right knee meniscal tear and degenerative arthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with degenerative arthritis until around 2010 and a meniscus tear until 2013, both over 20 years since her separation, and the record reflects the first reports of right knee pain around 2005, 17 years after her separation. On October 2020 VA examination, the Veteran reported that she had fallen during service, around 1985, and slipped on ice or snow, twisting her knee. She reported she was treated with Tylenol for a possible contusion of the right knee. She also reported that she began experiencing chronic right knee pain after separation from service. After an examination and review of the record, the VA examiner opined that the Veteran's right knee disability was less likely than not related to her active duty service. The examiner found that her service treatment records (STR's) did not indicate that a fall took place during service, and that her STR's did not indicate any injuries, complaints or illnesses related to her right knee. The examiner also found that her post-service fall in 2009 was more likely than not the cause of her right knee meniscus tear. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's assertions that her right knee disability is related to service. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of the right knee disability at issue here are outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board gives more probative weight to the October 2020 VA examiner's opinion. Respiratory Disorder The Veteran asserts that her current respiratory disorder began during her active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of chronic sinusitis, allergic rhinitis, and asthma, and the record reflects that the Veteran was treated during service for a respiratory infection, bronchitis, and sinusitis, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of a respiratory disorder began during service or is otherwise related to an in-service injury, event, or disease. VA and private treatment records reflect that the Veteran was not diagnosed with chronic sinusitis and allergic rhinitis until around 2002 and with asthma until 2011, 14 and 23 years after her separation from service, respectively. After an examination and review of the record, the October 2020 VA examiner opined that her sinusitis, allergic rhinitis, bronchitis, and asthma were less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that the noted respiratory infection, bronchitis, and sinusitis during service were acute or viral, self-limited, and usually resolved without residuals. The Veteran's service records were silent for diagnosis of chronic sinusitis, chronic bronchitis, and asthma during service. Additionally, her service record was silent for any exposure to airborne pollutant which may have predisposed her to developing asthma, allergic rhinitis, and chronic sinusitis. The examiner also noted that the Veteran had a history of smoking, and smoking was a known risk factor for acute respiratory infections. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The Board has considered the Veteran's assertions that her respiratory disorders are related to service. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of the respiratory disorders at issue here are outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana, at 428; Jandreau, at 1372. The Board gives more probative weight to the October 2020 VA examiner's opinion. The Board also recognizes that the Veteran has claimed that her respiratory disorder is secondary to her right knee disability, and secondary to the residuals of a March 2009 right ankle fracture, which the Veteran sought compensation for under 38 U.S.C. § 1151. As compensation has not been established for either service connection for a right knee disability or under 38 U.S.C. § 1151, there is no legal basis to find that the Veteran's respiratory disorder as secondary thereto. See January 2020 Board decision. Left Knee Disability, Acquired Psychiatric Disorder, Right Shoulder Disability, Left Shoulder Disability, Low Back Disability, Hypertension, and Headache Disorder The Veteran seeks service connection for a left knee disability, an acquired psychiatric disorder, bilateral shoulder disabilities, a low back disability, hypertension, and a headache disorder. She contends that she was treated for all of these disabilities during her active duty service. The question for the Board is whether the Veteran has current disabilities that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of degenerative joint disease of the left knee; depression and anxiety; bilateral shoulder pain; sciatica and anterolisthesis; hypertension; and migraines, the preponderance of the evidence is against finding that any of these disabilities began during active service, or is otherwise related to an in-service injury, event, or disease. VA examinations have not been conducted as to the Veteran's left knee, shoulders, back, psychiatric disorder, hypertension or headache disorder, but the Board finds the duty to assist does not require examinations in this case because there is no competent or credible evidence of an in-service event or indication that a current disability may be associated with service, and no credible evidence that such disabilities may be associated with service. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In her September 2013 VA Form 9 Substantive Appeal, the Veteran reported she was treated for all her claimed disabilities while on active duty, and that service connection was warranted based on this general assertion. However, this assertion is contradicted by the record. The Veteran has not provided any other additional information as to when such disabilities were treated during service, or any other incident or illness during service that her claimed a left knee disability, an acquired psychiatric disorder, bilateral shoulder disabilities, a low back disability, hypertension, and a headache disorder are related to here active duty service. The Veteran's STR's are silent for any complaints, treatment, or diagnoses of any left knee, shoulders, back, psychiatric disorder, hypertension, or headache disabilities. Therefore, the criteria of McLendon are not met and examinations are not necessary to adjudicate the Veteran's claim. Accordingly, the Board also therefore finds that the preponderance of evidence is against a finding of an in-service left knee disability, psychiatric, bilateral shoulder disabilities, a low back disability, hypertension, and a headache injury or treatment occurred on which the Veteran bases her claims. Additionally, other than her general assertion of receiving treatment during service for such disabilities, the Veteran has not identified how her left knee disability, an acquired psychiatric disorder, bilateral shoulder disabilities, a low back disability, hypertension, or headache disorder may be associated with her service. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of the knee, shoulder, psychiatric, back, hypertension, and headache disabilities at issue here are outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also recognizes that the Veteran has claimed that her left knee disability, an acquired psychiatric disorder, bilateral shoulder disabilities, a low back disability, hypertension, and headache disorder are secondary to her right knee disability, and secondary to the residuals of a March 2009 right ankle fracture, which the Veteran sought compensation for under 38 U.S.C. § 1151. As compensation has not been established for either service connection for a right knee disability or under 38 U.S.C. § 1151, there is no legal basis to find that the Veteran's left knee disability, an acquired psychiatric disorder, bilateral shoulder disabilities, a low back disability, hypertension, and headache disorder as secondary thereto. See January 2020 Board decision. REASONS FOR REMAND Entitlement to service connection for a right ankle disability is remanded. The Veteran asserts that her right ankle disability was treated during her active duty service. Her STR's reflect treatment for foot pain, heel pain, and foot and ankle swelling. The Board cannot make a fully-informed decision on the issue of service connection for a right ankle disability because no VA examiner has opined whether her right ankle disability is related to her active duty service. While on remand, updated treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for right ankle complaints since service not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records since December 2020. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the etiology of the Veteran's right ankle disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all diagnosed right ankle disabilities since March 2009. (b.) For each diagnosed right ankle disability, is it at least as likely as not related to an in-service injury, event, or disease? Why or why not? The examiner should consider and discuss as necessary the Veteran's in-service treatment for foot pain, heel pain and ankle swelling, and her March 2009 post-service right ankle injury. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.