Citation Nr: 0814304 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 03-23 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for neuropathy, to include as secondary to exposure to Agent Orange (AO). 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a low back disability to include scoliosis and degenerative changes with secondary spinal stenosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran had active service from August 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2000 and June 2005 rating determinations of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The October 2000 decision, in part, denied entitlement to service connection for a bilateral knee condition. The June 2005 rating decision, in part, denied entitlement to service connection for mild scoliosis, degenerative changes with secondary mild spinal stenosis and neuropathy. In April 2007, the Board remanded these issues for further development. FINDINGS OF FACT 1. The veteran served in the Republic of Vietnam during the Vietnam Era. 2. Current neuropathy is not related to an in-service disease or injury, including exposure to Agent Orange or other herbicides. 4. A current bilateral knee disability is not related to any disease or injury in service. 5. The veteran's current low back disability, diagnosed as mild scoliosis, degenerative changes with secondary mild spinal stenosis was first demonstrated many years after service and is not shown to have had its onset during service or to be in any way causally related to service. CONCLUSIONS OF LAW 1. Neuropathy was not incurred in or aggravated by service and is not related to a service connected disease or disability. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b); (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. (2007). 2. A knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 3. A low back disability, including scoliosis, degenerative changes with secondary mild spinal stenosis was not incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In a letter issued in May 2005, the RO notified the veteran of the evidence needed to substantiate his claims for service connection. This letter and a May 2003 letter and a June 2007 letter satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element, the VCAA letters contained a notation that the veteran should let VA know if there was any other evidence or information that would support his claim. This statement served to advise the veteran to submit any evidence in his possession pertinent to the claims on appeal. The United States Court of Appeals for Veterans Claims (Court)has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran has substantiated his status as a veteran and the second and third elements of Dingess notice are satisfied by the May 2003, May 2005 and June 2007 letters. However, the veteran did not receive notice about the evidence needed to establish a rating or notice regarding an effective date until the June 2007 letter. VCAA notice should be provided prior to the initial adjudication of the claim. Pelegrini II. The timing deficiency in the June 2007 letter was cured by readjudication in a supplemental statement of the case dated in November 2007. Thus, all required notice was given. The duty to assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained all the evidence reported by the veteran or suggested by the record. Per the remand instructions, the veteran underwent a VA examination in August 2007. The veteran has not reported any missing VA or private medical records that need to be obtained. In December 1977, the National Personnel Records Center reportedly sent the veteran's service medical records to the RO. The service medical records are not now in the claims folder. VA is generally required to search for alternate sources of information. Washington v. Nicholson, 19 Vet. App. 362 (2005). NPRC did report that a search of evacuation hospital records had been negative and the RO has sought service personnel records. The lack of further efforts does not prejudice the veteran. He is claiming service connection for neuropathy on the basis of in-service exposure to Agent Orange. Such exposure is presumed to have occurred, even in the absence of service department records. 38 U.S.C.A. § 1116(f) (West 2002). He has not reported any other in-service disease or injury in connection with his claims for service connection for neuropathy. The denial of the bilateral knee condition and a back condition was determined not by the lack of an in-service injury, but rather because of a lack of relationship between the current disability and service. There is no further action to be undertaken to comply with the provisions of the VCAA and the implementing regulations. 38 U.S.C.A. §5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Applicable laws and regulations in service connection claims Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service- connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, with the proviso that aggravation will not be conceded unless a baseline for the non-service connected condition can be established prior to the aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background In an October 1996 letter, Dr. Thomas Freeman stated that the veteran was assaulted by his supervisor at work. The veteran reported that his supervisor grabbed him by his neck and beat his head against a door. The veteran reported back and neck pain since this incident. He stated that since the incident, he had neck pain with numbness into his left arm into his middle finger. The pain was worse with neck extension which exacerbated the numbness. He also had a low back pain but denied paresthesias in his legs. Dr. Freeman noted that the veteran's lumbar X-rays were normal. Dr. Freeman stated that the veteran was having radicular symptoms in the left arm related to his neck. His low back pain was myofascial in origin without radicular symptoms and with normal X-rays. In a July 1997 letter, Dr. Kanta Shah stated that the veteran had been experiencing cervical pain, back pain and pain in the arms in legs as a result of an injury in March 1996 when he was assaulted. The veteran had associated feeling of numbness in his legs. The diagnosis was post traumatic chronic cervical and back pain, fibromylagia of the right paralumbar muscles and a herniated disc. An August 1997 treatment note from a physician at the Harbourside Medical Tower reported that the veteran had secondary fybromylagia post trauma. An EMG test in April 2000 demonstrated normal motor nerve conduction studies, a normal EMG study and no electrophysiologic evidence of lumbar radiculopathy. In May 2000 the veteran presented to the Neuropsychiatric Institute. He reported being involved in a motor vehicle accident in December 1998 where he sustained a head injury and loss of consciousness. In May 2000 the veteran presented to Dr. Fred Turner with complaints of neck pain that radiated to his fingers as well as low back pain that radiated to his lateral calf. Dr. Turner stated that these symptoms were the result of an automobile accident that occurred in December 1998. In August 2000 the veteran presented to Dr. Frank Gomes, a neurological surgeon, with complaints of pain stiffness of his low back and severe neck pain. Dr. Gomes reported that in December 1998 the veteran was a passenger in a vehicle that was involved in a head-on collision with a cement truck. After the accident the veteran developed cervical pain and low back pain. He had moderate cervical stiffness and headaches with a chief complaint of low back and bilateral pain and numbness. The diagnosis was status post motor vehicle accident in December 1998 with post traumatic cervical sprain/strain; severe post traumatic lumobosacral strain/sprain; aggravated symptomatic lumbar spondylosis and spinal stenosis and a herniated lumbar disc. In an April 2001 letter, Dr. Gomes stated that the veteran was status post previous lumbar back surgery, a lumbar laminectomy/discetomy at L4-5, performed in October 2000. Dr. Gomes noted that the veteran developed chronic low back pain syndrome with chronic complaints of low back leg pain with numbness. In December 2004 the veteran presented to the Bay-Pines VA Medical Center (VAMC) for a neurology consultation. The treating doctor noted that the veteran had a motor vehicle accident in 1998 which resulted in a lumbar laminectomy for severe pain in the lower back and weakness. The diagnosis was low back pain, likely spondylosis. In May 2005 the veteran presented to the VAMC with complaints of chronic neck back pain for over 34 years. He also reported continued pain in his lower back, neck, knees and shoulders. The diagnosis was a presentation consistent with degenerative joint disease in the entire spine. A May 2005 MRI of the lumbar spine demonstrated mild scoliosis of the lower lumbar spine. An MRI of the cervical spine demonstrated C2 vertebral body hemangioma with the remainder of the examination normal. In August 2007 the veteran underwent a VA examination for his knees, spine and peripheral nerves. The veteran reported that he sustained a knee injury in Vietnam when he was jumping from a parachute and had to do the five-point landing. He had a total of five parachute jumps. The diagnosis was bilateral knee osteoarthritis. The examiner stated that it was as least as likely as not that the veteran's knee pains were related to the parachute jumping. This opinion was based on the fact that he had parachute jumping in 1967 and many other jumps in air assault and the pain had continued since then. X-rays of the knees in August 2007 was unremarkable except for mild vascular calcification. Regarding his spine, the veteran reported pain for the last 30 years. The examiner noted that an MRI of the lumbar spine showed moderate to severe arthropathy in L5-S1, L4-L5. The diagnosis was cervical spine osteoarthritis and lumbar spine osteoarthritis with facet arthropathy. The examiner concluded that it was unlikely that the veteran's spine arthritis was related to his active service. Regarding the peripheral nerves, the veteran presented with complaints of sciatic pain. He reported pain and numbness in his left leg, left buttock, and lower back since 1998, correlating to the onset of pain in his spine. The diagnosis was sciatica neuralgia. The examiner concluded that it was unlikely that the veteran's sciatica neuralgia was due to the result of active service. It was likely that the neuralgia was due to the lumbar spine arthropathy. In November 2007, another VA examiner provided an addendum to the August 2007 VA examination. The November 2007 examiner reviewed the claims folder, and noted that the August 2007 examiner rendered a clinical diagnosis of osteoarthritis of the knees that was related to service by virtue of the veteran's parachute jumping. However, the November 2007 VA examiner stated that it was clear that the August 2007 examiner rendered a clinical diagnosis prior to receiving the final X-ray report. Based on that report, the conclusion was that the diagnosis of osteoarthritis was untenable. The examiner stated that the clinical findings and X-rays pointed to only a symptom--arthralgia (joint pain). The November 2007 VA examiner noted that there was no mention of a knee or back condition which included a VA examination in May 1991. The back pain appeared to be subsequent to a motor vehicle accident in December 1998 and in reference to a fight. The November 2007 VA examiner concluded that the veteran's bilateral knee condition and back condition were not as likely as not a consequence of military service. I. Entitlement to service connection for neuropathy, to include as secondary to exposure to Agent Orange (AO). Analysis A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116. A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than ones listed in 38 C.F.R. § 3.309(a), however, will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; type II diabetes; Hodgkin's disease; Multiple myeloma; Non-Hodgkin's lymphoma; Acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Respiratory cancers (cancer of the lung, bronchus, larynx or trachea); Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2007). Note 2 that follows provides that for purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Id. The diseases listed at 38 C.F.R. § 3.309(e) shall be service connected if they manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. The veteran asserts that he now has neuropathy as the result of exposure to Agent Orange in Vietnam. The veteran served in Vietnam. Exposure to Agent Orange or other herbicide agents is thus presumed. Acute or subacute peripheral neuropathy must manifest to a degree of 10 percent or more within one year of the veteran's date of last claimed exposure to herbicides and resolved within two years of the exposure, for either to be presumed to have been incurred in service which is not demonstrated in this case. While the veteran's service medical records are not available for review, there is no evidence of peripheral neuropathy. The first evidence of a neurologic impairment, sciatic neuropathy was in October 1996, close to 30 years following the veteran's separation from service. There are no medical records showing earlier treatment as the initial treatment was a result of an incident where the veteran was assaulted at his job. The veteran's statements could be read as reporting a continuity of symptomatology since service, but this history is not credible when viewed in the light of the contemporaneous history he reported when initially seen. That history reported no symptomatology prior to injuries long after service. The requirement that peripheral neuropathy manifest within weeks or months of herbicide exposure and resolve within 2 years of onset has not been met. Thus, the veteran is not entitled to presumptive service connection for peripheral neuropathy under 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Failure to establish presumptive service connection based on herbicide exposure does not preclude the veteran from establishing direct service connection. Stefl v. Nicholson, 21 Vet App 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). With regard to the three elements of service connection, the veteran has a current diagnosis of sciatica neuralgia. The requirement that there be a current disability is thus satisfied. The veteran's DD Form 214 reveals that he received basic airborne training and the parachute badge and the Board accepts, for purposes of argument, that he sustained an in service injury as a result of his parachuting. However, peripheral neuropathy was not diagnosed until October 1996, which was many years after discharge from service. Additionally, the veteran sustained a work related assault and a motor vehicle accident which resulted in pain and numbness in his left leg, left buttock, and lower back. Additionally, there is no competent evidence linking the current neuropathy condition to service as there is no medical opinion linking the current disability to service. As a lay person, the veteran is not competent to render an opinion that his neuropathy is related to an injury or disease in service. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Additionally, the August 2007 VA examiner concluded that it was unlikely that the veteran's sciatica neuralgia was due to or the result of active service. It was likely that the neuralgia was due to the lumbar spine arthropathy. In short, the preponderance of the evidence is against a finding that the incurred neuropathy as a result of disease or injury in active military service. Lower extremity weakness has been linked to sciatica or fibromyalgia secondary to lumbar spine disability. As addressed below, the veteran is not service connected for a lumbar strain or lumbar spine arthropathy. Secondary service connection could also not be granted based on this theory of entitlement. 38 C.F.R. §§ 3.303, 3.310. The medical opinion is to that the sciatica is not related to service. As just discussed the medical opinions against a link between current sciatica and service are supported by the contemporaneous record. VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. 38 U.S.C.A. § 5107(b). That doctrine, however, is not applicable in this case because there is no competent evidence of a nexus between the current disability and service, and the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. II. Entitlement to service connection for a bilateral knee disorder. Analysis With regard to the three elements of service connection, the DD Form 214 reveals that the veteran received basic airborne training and the parachute badge. This evidence supports the veteran's reports of in-service knee trauma from parachute jumps. The element of an in-service injury is satisfied. The veteran has a current diagnosis of arthralgia (joint pain). No underlying knee disability has been shown. Pain without an underlying disease or disability cannot satisfy the requirement that there be a current disability. Sanchez- Benitez v. West, 13 Vet App 282 (1999); Evans v. West, 12 Vet. App. 22 (1998). Although one examiner diagnosed arthritis, this finding was discredited by the normal X-ray examination and the subsequent opinion by a VA examiner who reviewed the claims folder. Under the rating schedule, osteoarthritis must be demonstrated by X-ray examination. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). The only reported X-ray examination in this case failed to reveal osteoarthritis and the most informed medical opinion is that the veteran does not have arthritis of the knees. The weight of the evidence is therefore, against a finding that the veteran has a current knee disability. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds that the August 2007 VA opinion regarding the bilateral knee condition is of less probative value than the opinion of the November 2007 VA examiner's clarification addendum. As noted, the August 2007 VA examiner's opinion regarding the bilateral knee condition was rendered prior to receiving the final X ray report which did not demonstrate osteoarthritis. The November 2007 VA examiner had the benefit of a review of the veteran's final X-ray report. The November 2007 VA examiner also addressed the timing of the veteran's symptoms and provided a thorough rationale for his conclusions. For these reasons the Board finds the November 2007 VA examiner's opinion to be the most probative. The Board also notes that the veteran's testimony regarding the cause of his bilateral knee condition. However, as a lay person, he is not competent to diagnose his symptoms as stemming from osteoarthritis. Grottveit v. Brown, supra.; Espiritu v. Derwinski, supra. Because the most probative evidence is against a finding of current disability, the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application and, the claim is denied. See 38 U.S.C.A. § 5107(b). III. Entitlement to service connection for mild scoliosis, degenerative changes with secondary mild spinal stenosis. Analysis The veteran has a current diagnosis of cervical spine osteoarthritis and lumbar spine osteoarthritis with facet arthropathy. The requirement that there be a current disability is thus satisfied. The veteran's reports of in-service back trauma are consistent with his duties as a parachutist. The only competent evidence of a link between the current disability and service consist of the veteran's recent reports of back pain since service. These recent reports must be weighed against his contemporaneous reports that the back paint did not arise until the injuries in 1996 and 2001, decades after service. His reports must also be weighed against the competent medical opinion. The August 2007 and November 2007 VA examiners concluded that it was not as likely as not that the current back disability was a consequence of military service. As a lay person, the veteran is not competent to render a medical opinion as to the cause of the current back disability. Barr v. Nicholson, Grottveit v. Brown, supra; Espiritu v. Derwinski, supra. The preponderance of the evidence is, therefore, against finding a link between the current back disability and a disease or injury in service. As the veteran has arthritis, service connection may be granted if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, there are no records that provide a diagnosis of arthritis within one year of separation from service. The preponderance of the evidence is against a finding that current cervical spine osteoarthritis and lumbar spine osteoarthritis with facet arthropathy is related to his service, or that it became manifest within a year of his discharge from active service. The first clinical finding of degenerative disc or joint disease was in May 2005, almost 40 years after the veteran's discharge from active duty. While the veteran has reported a continuity of symptomatology, the record demonstrates that his back condition began after his involvement in an assault and a motor vehicle accident almost 30 years after service. As the record does not show that the veteran had arthritis in service or to a compensable degree within one year of his discharge from active duty, the weight of the evidence is also against presumptive service connection. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The weight of the evidence is against a grant of service connection. As such, the benefit of the doubt rule is not for application and the claim is denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for neuropathy, to include as secondary to exposure to Agent Orange (AO) is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for mild scoliosis, degenerative changes with secondary mild spinal stenosis is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs