Citation Nr: 1007377	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  06-29 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUES

1.  Entitlement to service connection for lumbar spine 
degenerative disc disease and degenerative joint disease (a 
low back disorder).

2.  Entitlement to service connection for a right knee 
disorder including secondary to a low back disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from May 1978 to May 1982.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2003 decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in Louisville, 
Kentucky.  


FINDINGS OF FACT

1.  The preponderance of the competent and credible evidence 
is against finding that a chronic low back disorder was 
present in-service, arthritis of the lumbar spine manifested 
to a compensable degree in the first post-service year, or 
that a current low back disorder is related to service.

2.  The preponderance of the competent and credible evidence 
is against finding that a chronic right knee disorder was 
present in-service, arthritis of the right knee manifested to 
a compensable degree in the first post-service year, that a 
current right knee disorder is related to service, or that a 
current right knee disorder was caused or aggravated by a 
service connected disability.


CONCLUSIONS OF LAW

1.  A low back disorder was not incurred in or aggravated by 
active service nor may arthritis of the lumbar spine be 
presumed to have been so incurred.  38 U.S.C.A. §§ 1131, 
5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009).

2.  A right knee disorder was not incurred or aggravated 
during military service, arthritis of the right knee may not 
be presumed to have been so incurred, and a right knee 
disorder was not caused or aggravated by a service connected 
disability.  38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 
5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310 (2006); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants 
in substantiating a claim for VA benefits.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an 
appropriate claim form, instructions for completing it, and 
notice of information necessary to complete the claim if it 
is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a 
duty to notify the claimant of the information and evidence 
needed to substantiate and complete a claim, i.e., existence 
of a current disability, the degree of disability, and the 
effective date of any disability benefits.  The appellant 
must also be notified of what specific evidence he is to 
provide and what evidence VA will attempt to obtain.  VA 
thirdly has a duty to assist claimants in obtaining evidence 
needed to substantiate a claim.  This includes obtaining all 
relevant evidence adequately identified in the record and, in 
some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

Initially, the Board notes that in the current appeal there 
is no issue as to providing an appropriate application form 
or completeness of the application.  

Next, the Board finds that written notice provided in March 
2003, prior to the July 2003 rating decision, along with the 
notice provided in November 2004, November 2006, and April 
2007 fulfills the provisions of 38 U.S.C.A. § 5103(a) 
including notice of the laws and regulations governing the 
assignment of disability ratings and effective dates as 
required by the United States Court of Appeals for Veterans 
Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 
(2006).  Moreover, while the Veteran was not provided 
complete 38 U.S.C.A. § 5103(a) notice prior to the initial 
adjudication of his claims, thereafter providing adequate 
notice in November 2006 and April 2007, followed by a 
readjudication of the claims in the October 2007 supplemental 
statement of the case, "cures" any timing problem 
associated with inadequate notice or the lack of notice prior 
to an initial adjudication.  Mayfield v. Nicholson, 
20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 
444 F.3d at 1333-34.  Moreover, the Board finds that even if 
the above letters failed to provide the Veteran with adequate 
38 U.S.C.A. § 5103(a) notice, this notice problem does not 
constitute prejudicial error in this case because the record 
reflects that a reasonable person could be expected to 
understand what was needed to substantiate the claims after 
reading the above letters as well as the July 2003 rating 
decision, August 2006 statement of the case, and January 2007 
and October 2007 supplemental statements of the case.  See 
Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  Furthermore, the 
Board finds that there can be no prejudice to the Veteran due 
to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as 
here, none has been specifically alleged.  Id.

VA has also secured all available pertinent evidence and 
conducted all appropriate development.  Specifically, a 
review of the record on appeal shows that VA obtained and 
associated with the record all available and identified in-
service and post-service records including the Veteran's 
treatment records from the Spine Institute and his records on 
file with the Social Security Administration (SSA).  The 
record also shows that the Veteran was afforded VA 
examinations in June 2003 and July 2007 which are adequate 
for the Board to adjudicate the claims because the examiners 
provided medical opinions as to the origin of the Veteran's 
low back and right knee disorders as well as a rational for 
these opinions after a review of the record on appeal and an 
examination of the claimant.  See 38 U.S.C.A. § 5103A(d) 
(West 2002); Barr v. Nicholson, 21 Vet App 303 (2007); 
McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the Board finds that there is no identified, 
available, and pertinent evidence which is not currently part 
of the claims files.  Hence, VA has fulfilled its duty to 
assist the Veteran in the prosecution of his claims and 
adjudication of this appeal may go forward.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

The Claims

The Veteran contends that his low back and right knee 
disorder were caused by falls he took in-service, including 
falling off of a truck.  In the alternative, it is alleged 
that his right knee disorder was caused or aggravated by his 
low back disorder.  It is also requested that the Veteran be 
afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record 
establishes that a particular injury or disease resulting in 
disability was incurred in the line of duty in the active 
military service or, if pre-existing such service, was 
aggravated thereby.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  
If a condition noted during service is not shown to be 
chronic, then generally a showing of continuity of 
symptomatology after service is required for service 
connection.  38 C.F.R. § 3.303(b).  In addition, service 
connection may also be granted on the basis of a post-service 
initial diagnosis of a disease, where the physician relates 
the current condition to the period of service.  38 C.F.R. 
§ 3.303(d).  Arthritis, if manifest to a degree of 10 percent 
within one year after separation from active duty, may be 
presumed to have been incurred in service.  38 C.F.R. 
§§ 3.307, 3.309.  

Service connection may also be granted where disability is 
proximately due to or the result of already service-connected 
disability.  38 C.F.R. § 3.310.  Compensation is payable when 
service-connected disability has aggravated a non-service-
connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995) 
(en banc).

The Board notes that there was a recent amendment to the 
provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 
(Sept. 7, 2006).  The amendment sets a standard by which a 
claim based on aggravation of a non-service-connected 
disability by a service-connected one is judged.  Although VA 
has indicated that the purpose of the regulation was merely 
to apply the Court's ruling in Allen, it was made clear in 
the comments to the regulation that the changes were intended 
to place a burden on the claimant to establish a pre-
aggravation baseline level of disability for the non-service-
connected disability before an award of service connection 
based on aggravation may be made.  This had not been VA's 
practice, which suggests the possibility that the recent 
change amounts to a substantive change in the regulation.  
For this reason, and because the Veteran's claim was pending 
before the regulatory change was made, the Board will 
consider the version of 38 C.F.R. § 3.310 in effect before 
the change, which is more favorable to the claimant.

In evaluating the evidence in any given appeal, it is the 
responsibility of the Board to weigh the evidence and decide 
where to give credit and where to withhold the same and, in 
so doing, accept certain medical opinions over others.  
Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this 
regard, the Board has been charged with the duty to assess 
the credibility and weight given to evidence.  Davidson v. 
Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. 
Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. 
Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. 
Principi, 16 Vet. App. 370 (2002); Klekar v. West, 
12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared 
that in adjudicating a claim, the Board has the 
responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 
488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 
(1992).  In doing so, the Board is free to favor one medical 
opinion over another, provided it offers an adequate basis 
for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); 
Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

As to service incurrence under 38 C.F.R. § 3.303(a), service 
treatment records document the Veteran's complaints and 
treatment for low back pain with tenderness and muscle 
spasms, due to a fall in January 1979 and a subsequent fall 
from a truck in July 1981, diagnosed as a lumbar strain 
starting in January 1979.  See service treatment records 
dated in January 1979, July 1979, and September 1981.  In 
addition, the Veteran's December 1982 separation examination 
both noted a history of back pain and diagnosed the Veteran 
with recurrent back pain.  Likewise, service treatment 
records document the Veteran's complaints and treatment for 
right knee pain diagnosed as a sprain in May 1979 and a 
contusion in August 1981.  Furthermore, the Board finds that 
the Veteran is both competent and credible to report on the 
fact that he had problems with low back and right knee pain, 
swelling, and/or limitation of motion while on active duty.  
Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, 
supra.  Therefore, the Board will concede that the Veteran 
injured his low back and right knee while on active duty.  

However, lumbar spine x-rays in January 1979 and right knee 
x-rays in August 1981 were negative.  Moreover, the February 
1982 separation examination was negative for complaints or 
diagnoses related to the right knee and, while it reported 
that the Veteran had recurrent back pain, the Court has said 
that pain alone, without a diagnosed related medical 
condition, does not constitute a disability for which service 
connection may be granted.  See Sanchez-Benitez v. West, 
13 Vet. App. 282 (1999).  

Accordingly, the Board finds that entitlement to service 
connection for low back and right knee disorders based on in-
service incurrence must be denied despite the Veteran's 
documented in-service injuries because the record does not 
show that he suffered any chronic disability due to these 
injures.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Stated 
another way, the Board must deny his claims because, while 
the record shows the Veteran injured his low back and right 
knee while on active duty, his residuals from those injuries 
were transitory in nature and cannot form a basis for service 
connection.  Id.

As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309, 
the Board notes that the post-service record does not show 
the Veteran being diagnosed with arthritis of the lumbar 
spine and/or right knee in the first post-service year.  
Accordingly, entitlement to service connection for low back 
and a right knee disorders based on the presumptions found at 
38 C.F.R. §§ 3.307, 3.309 must also be denied.  

As to post-service continuity of symptomatology under 
38 C.F.R. § 3.303(b), the Board finds that the length of time 
between the Veteran's separation from active duty in 1982 and 
first seen complaining of low back problems in 2001, 
thereafter diagnosed as degenerative disc disease, 
degenerative joint disease, stenosis, and/or a herniated 
nucleus pulposus, status post lumbar spine fusions in 2002 
and 2004, and first seen complaining of right knee problems 
in 1992, thereafter diagnosed as a meniscus tear, status post 
arthroscopic surgeries in 1992 and 1996, to be compelling 
evidence against finding continuity.  Put another way, the at 
least decade long gap between the Veteran's discharge from 
active duty and the first evidence of the claimed disorders 
weighs heavily against his claims.  See Maxson v. West, 
12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 
2000) (service incurrence may be rebutted by the absence of 
medical treatment for the claimed condition for many years 
after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), 
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. 
Cir. 2002) (noting that the definition of evidence 
encompasses "negative evidence" which tends to disprove the 
existence of an alleged fact); Mense v. Derwinski, 
1 Vet. App. 354, 356 (1991) (holding that VA did not err in 
denying service connection when the Veteran failed to provide 
evidence which demonstrated continuity of symptomatology, and 
failed to account for the lengthy time period for which there 
is no clinical documentation of his low back condition); Shaw 
v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in 
asserting a claim can constitute negative evidence that 
weighs against the claim).

In this regard, the Board acknowledges, as it did above, that 
the Veteran is competent to give evidence about what he sees 
and feels; for example, the claimant is competent to report 
that he had problems with pain, swelling, and/or limitation 
of motion since service.  See Davidson, supra; Buchanan, 
supra; Jandreau, supra; Charles, supra.  The Board also 
acknowledges that the Veteran's representative, wife, and 
cousin are competent to give evidence about what they see.  
Id.  However, upon review of the claims folders, the Board 
finds that the assertions that the Veteran has had these 
problems since service are not credible.  In this regard, the 
Veteran, his wife, his cousin, and his representative's 
claims are contrary to what is found in the post-service 
medical records which is negative for complaints, diagnoses, 
or treatment for either of the claimed disorders for at least 
a decade after his separation from military service.  

Moreover, the Board notes that some of the treatment records 
document the Veteran's claim that he had had problems with 
his low back and/or knee since service.  Moreover, in a 
December 2002 statement from Hugh H. Wilhite, M.D., it was 
reported that the Veteran did not have a history of low back 
trouble while in high school.  However, the Board also finds 
it significant that in some other treatment records the 
appellant reported that he had had problems with his back 
since high school, since he was 18 and played football, 
and/or since he was a teenager.  In yet other records, the 
Veteran reported that he had had increased problems with low 
back pain with radiculopathy since a September 1981 work 
injury.  In yet other treatment records, the Veteran reported 
that he had had problems with right knee pain since January 
1992 when his knee locked-up when he was crawling under a 
table to plug-in an electric train set.  

In these circumstances, the Board gives more credence to the 
independent medical evidence of record, which is negative for 
complaints, diagnoses, or treatment for the claimed disorders 
for at least a decade following his separation from active 
duty, than the Veteran's, his wife's, his cousin's, and his 
representative's claims.  Therefore, entitlement to service 
connection for a low back disorder and a right knee disorder 
based on post-service continuity of symptomatology must be 
denied.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b).

As to service connection for a right knee disorder, based on 
the initial documentation of the disability after service 
under 38 C.F.R. § 3.303(d), the Board notes that the record 
is negative for a medical opinion finding a causal 
association or link between any current right knee disorder 
and an established injury, disease, or event of service 
origin.  See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); 
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) 
(establishing service connection requires finding a 
relationship between a current disability and events in 
service or an injury or disease incurred therein).  In fact, 
both the June 2003 and the July 2007 VA examiners opined that 
it was not.  These opinions were based on a claims file 
review and an interview and evaluation of the Veteran.  In 
addition, a rationale was provided which highlighted the 
Veteran's in-service and post-service medical history and 
lack of continuity of symptomatology since service in order 
to explain the lack of nexus to service.  These opinions are 
not contradicted by any other medical opinion of record.  See 
Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only 
consider independent medical evidence to support its findings 
and is not permitted to base decisions on its own 
unsubstantiated medical conclusions).  

As to service connection for a low back disorder based on the 
initial documentation of the disability after service under 
38 C.F.R. § 3.303(d), the Board notes that in May 2004 one of 
the Veteran's physician's from the Spine Institute provided 
the following opinion:

We discussed his original injuries from 
his back going back to the Military and I 
have reviewed those records and gone on 
record as saying this was contributory to 
his problems that he has had leading to 
the original surgery and the original 
surgery has led to this surgery. 

On the other hand, in the addendum to the June 2003 VA spine 
examination, it was opined, after a review of the record on 
appeal and an examination of the claimant, as follows:

According to the records . . . the 
Veteran has had problems with back pain 
since high school and since he was a 
teenager . . . [H]e . . . had an acute 
lumbosacral strain on two occasions 
during his military service.  Then there 
are no medical records for 20 years [but 
the record] . . . stated that he works . 
. . building refrigerators and does a lot 
of bending and lifting.  [The record 
also] . . . stated that . . . in 
September of 2001[,] he developed an 
increased onset of fairly severe back 
pain.

There are no medical records to document 
any continuity of ongoing problems after 
he left service until . . . 2002.  As a 
result of this[,] I would find that it is 
less likely than not that the acute 
lumbosacral strains that he sustained in 
the service were the main cause of his 
degenerative joint disease and 
degenerative disk disease of the lumbar 
spine with spinal stenosis and lower 
extremity radiculopathy.

At the subsequent July 2007 VA examination conducted by a 
physician, it was likewise opined, after a review of the 
record on appeal and an examination of the claimant, as 
follows:

[The Veteran's] low back condition is 
less likely as not (less than 50/50 
probability) caused by or a result of 
[the V]eteran's military service [because 
b]ased on examination [of the Veteran] 
and all available documentation, . . . 
[b]ack injuries sustained during service 
were evidently resolved by date of 
discharge, and no structural 
abnormalities were ever documented during 
service.  Finally, a 17-year gap exists 
from last notation of back care while in 
service . . . [and until the time the 
record next shows his seeking treatment 
for his low back disorder post-service].  
Obesity and opioid dependence are 
principal factors aggravating his chronic 
back pain.

Initially, the Board finds the May 2004 private examiner's 
opinion that the Veteran's in-service low back injuries were 
"contributory" to his current low back disorders to 
speculative and inconclusive in nature to support his claim.  
See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); 
Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical 
opinions which are speculative, general, or inconclusive in 
nature cannot support a claim.).  The Board also finds the VA 
opinions more competent and credible than the May 2004 
private opinion because the VA opinions were provided after a 
review of the entire record on appeal, including the private 
opinion, and the VA opinions included detailed reasons, with 
citation to relevant evidence found in the record, for why 
the claimant's low back disorders were not caused by his 
military service.  See Hernandez-Toyens v. West, 11 Vet. App. 
379, 382 (1998) (the failure of the health care provider to 
provide a basis for his/her opinion goes to the weight or 
credibility of the evidence); see also Bloom v. West, 12 Vet. 
App. 185, 187 (1999) (the probative value of a physician's 
statement is dependent, in part, upon the extent to which it 
reflects "clinical data or other rationale to support his 
opinion.").  On the other hand, the private opinion did not 
provide any basis for it conclusion.  See Black v. Brown, 
5 Vet. App. 177, 180 (1995) (holding that a medical opinion 
is inadequate when it is unsupported by clinical evidence).  

Accordingly, the Board finds that the preponderance of the 
competent and credible evidence of record shows that the 
Veteran's low back disorder was not caused by his military 
service, including his documented in-service back injuries.  
See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that 
VA may favor the opinion of one competent medical expert over 
that of another when decision makers give an adequate 
statement of reasons and bases).

As to the Veteran's, his wife, his cousin, and his 
representative's claims that his low back and right knee 
disorders were caused by his military service, including his 
documented in-service injuries, the Board finds that because 
diagnosing degenerative disc disease, degenerative joint 
disease, stenosis, a herniated nucleus pulposus, and a 
meniscus tear requires special medical testing such as x-
rays, magnetic resonance imaging evaluations, an 
electromyography (EMG), and/or nerve conduction study as well 
as special medical training, that these conditions may not be 
diagnosed by their unique and readily identifiable features 
and therefore the presence of the disorders is a 
determination "medical in nature" and not capable of lay 
observation.  Routen v. Brown, 10 Vet. App. 183, 186 (1997); 
see also Bostain, supra, at 127; citing Espiritu, supra.  
Therefore, since laypersons are not capable of opining on 
matters requiring medical knowledge, the Board finds the 
Veteran's, his wife, his cousin, and his representative's 
opinions that these disabilities were caused by service not 
competent.  Routen, supra; see also Bostain, supra.   The 
Board also finds that the lay statements as to a nexus are 
outweighed by the record outlined above which is negative for 
complaints, diagnoses, or treatment for a low back disorder 
and a right knee disorder for at least a decade following 
service and which includes medical opinions which says they 
are not due to service.  Davidson, supra; Jandreau, supra; 
Buchanan, supra; Charles, supra.   

Based on the discussion above, the Board also finds that 
service connection for low back and right knee disorders are 
not warranted based on the initial documentation of the 
disabilities after service because the weight of the 
competent and credible evidence is against finding a causal 
association or link between the post-service disorders and an 
established injury, disease, or event of service origin.  See 
8 U.S.C.A. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); 
Rabideau, supra.

As to service connection for a right knee disorder under 
38 C.F.R. § 3.310, for the reasons explained above the Board 
found that Veteran was not entitled to service connection for 
a low back disorder.  In the absence of service connection 
for a low back disorder, the Board finds that his claim of 
service connection for a right knee disorder secondary to a 
low back disorder must be denied as a matter of law.  See 
8 U.S.C.A. § 1110; 38 C.F.R. § 3.310; Allen, supra; Sabonis 
v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not 
the evidence is dispositive, the Board should deny the claim 
on the ground of lack of legal merit).  

Accordingly, the Board must conclude that the weight of the 
evidence is against the claims of service connection for a 
low back disorder on a direct bases and a right knee disorder 
on a direct and secondary basis.  See 38 U.S.C.A. § 1131; 
38 C.F.R. §§ 3.303, 3.310.  



In reaching the above conclusions, the Board also considered 
the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  
However, as the preponderance of the evidence is against the 
claims, the doctrine is not for application.  See also, e.g., 
Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for a low back disorder is denied.

Service connection for a right knee disorder is denied.



____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs