Citation Nr: 1146292 Decision Date: 12/19/11 Archive Date: 12/29/11 DOCKET NO. 07-37 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for lumbosacral disability, status-post discectomy and fusion at L4-5, to include as secondary to service-connected left knee chondromalacia patella. 2. Entitlement to service connection for cervical laminectomy at C6. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Indianapolis, Indiana, and Huntington, West Virginia. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in December 2009. A transcript of the hearing is associated with the claims folder. FINDINGS OF FACT 1. The Veteran's currently diagnosed lumbosacral disability was first identified many years after service, is not shown to be related to his military service, and is not shown to be secondary to a service-connected disability. 2. The Veteran's currently diagnosed cervical spine disability was first identified many years after service and is not shown to be related to his military service. 3. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The Veteran does not have a lumbosacral disability that is the result of disease or injury incurred in or aggravated by active military service, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.6, 3.303, 3.304, 3.310 (2011); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. The Veteran does not have a cervical spine disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2011). 3. The criteria for assignment of TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The Veteran served on active duty from November 1967 to November 1969. The Veteran was noted to complain of left knee pain during service. He was evaluated and found to have chondromalacia patellae of the left knee. He was placed on a profile for his left knee for most of his period of active military service. His service treatment records are negative for any references to any type of back injury or treatment for complaints of back pain. The Veteran did not report any type of back or neck problems on his August 1969 Report of Medical History and there were no findings related to abnormalities of any part of the spine on the release from active duty physical examination of August 1969. The Veteran served in the U. S. Army Reserves from 1969 to 1973. Based on his testimony, it appears he had two years of active Reserve status between 1969 and 1971. His STRs show that he was involved in a motor vehicle accident (MVA) while enroute to a period of active duty for training (ACDUTRA) in July 1971. Treatment records from Porter Memorial Hospital noted that the Veteran had been involved in a MVA where the vehicle overturned and the Veteran did not have a seat belt. He complained of right knee and hand pain, and a stiff neck. He was diagnosed with contusions and abrasions of the scalp and knees, a cerebral concussion, contusions of the right hand and post-cervical muscle sprain. An x-ray of the cervical spine was interpreted to show minimal hypertrophic changes with no demonstrable fracture, dislocation or intrinsic bone disease. The STRs contain a line of duty investigation that found the injuries to be in the line of the duty. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has defined osteoarthritis as a "noninflammatory degenerative joint disease occurring chiefly in older persons, characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane." Bierman v. Brown, 6 Vet. App. 125, 126 (1994). The Veteran submitted his initial clam for VA disability compensation in August 1998. He sought service connection for a left knee disability. He did not identify any problems with either his low back or cervical spine. Records from a Dr. Edwards of the Arthroscopy & Orthopaedic Surgery, P.C. for the period from January 1996 to June 1996 were received. The records focused on treatment for the Veteran's left knee and left shoulder; however, an entry from February 1996 noted that the Veteran was involved in a MVA in January 1996. He was the passenger in a car that was hit on the passenger side. The entry noted that the Veteran was followed by I. S. Canavati, M.D. for complaints related to the cervical spine. The Veteran was afforded a VA examination in October 1998. He related a history of the MVA in January 1996. He described left knee injuries associated with the MVA. The Veteran also related that he had injured his neck at work in 1989 and had surgery for a herniated disc. He also injured his left shoulder and left elbow at work at different times and required surgical correction for the injuries. An x-ray of the cervical spine was said to show mild degenerative spurring at C4-5 and C5-6 without significant disc narrowing. There was some mild foraminal encroachment at C5-6 and C6-7 on the left secondary to spurring. The Veteran was granted service connection for chondromalacia of the patella of the left knee, not to include fracture, in April 2000. He was awarded a 10 percent disability rating. The Veteran submitted a claim for an increased rating for his left knee disability in December 2005. He also said he was seeking service connection for "pain in my back and disabling condition in my spine." He said he felt this was the direct result of aggravation caused by the left knee injury. The Veteran related how he had to march back to the barracks from the range and he experienced severe pain in his back as a result of his left knee. He said he reported this on his discharge physical examination in November 1969. He provided record authorizations for several sources of treatment. Records from Dr. Edwards, for the period from May 1995 to September 2001, were obtained. The records included a report from Marion General Hospital from May 1995. The primary focus of the report was related to a current left shoulder injury suffered on the job. The report noted that Dr. Canavati had performed a C6 laminectomy on the Veteran in 1989. Various work-related injuries were noted by history. There were no complaints related to the lower back. The records show the Veteran underwent arthroscopic surgery of the left knee in May 1996. The postoperative diagnoses were left knee internal derangement, chondromalacia of the patella, and medial plica syndrome. The remainder of the records were dated from June to September 2001. The Veteran was evaluated for complaints of pain in his left shoulder, and weakness and numbness in his hand. Records from Dana Corporation, for the period May 2001 to July 2002, were received. The records show the Veteran was seen for complaints involving his right leg and low back in May 2001. He reported he was running to get help for an employee and began to have difficulty with his low back and right leg. He had pain in the right leg and difficulty moving it. He also complained of low back pain. The assessment was lumbosacral strain. He was seen again in June 2001 for complaints of low back pain and numbness and giving way in his right leg. Another entry from June 2001 noted that the Veteran had a prior history of injury to his back in 1998. He was picking parts out of a tub at work and experienced radicular pain into his right leg. The Veteran was noted to have normal coordination. A follow-up entry from July 2001 noted that a magnetic resonance imaging (MRI) of the lumbar spine showed an annular tear at L4-L5. Another entry, from the same physician, dated in August 2001, noted that the physician had reviewed a recent MRI with one from 1998 and determined that they were essentially the same with no significant changes. The Veteran underwent lumbar discography in August 2001. The report indicated there was a normal discogram for L3-L4, a positive discogram at L4-L5 with right lateral and posterior fissuring. Finally, there was a negative discogram at L5-S1. The Veteran had surgery on the lumbosacral spine in September 2001. The Veteran underwent electromyography (EMG)/nerve conduction velocity (NCV) testing in February 2002. The tests showed probable mild acute right S1 radiculopathy, based on the presence of membrane irritability in the medial head of the gastroc. There was also multi-level membrane irritability in the bilateral paraspinals suggestive of post-op changes from prior lumbar fusion. The Veteran was referred for an independent review as to his ability to perform his job in April 2002. J. I. Williams, M.D., provided the opinion. He said the Veteran ambulated with a limp that favored his right lower leg. The Veteran had a limitation of motion of the lumbar spine and positive straight leg raising on the right. He said there was breakaway weakness of the gastroc, tibialis anterior, and extensor hallucis longus (EHL) on the right compared to the left. Another entry from July 2002 reported that the Veteran injured his back while standing up at work. He reported that he experienced constant numbness and pain into his right leg and occasionally both legs. The examiner said the Veteran had a very limited range of motion and walked with a limp. The Veteran said that was how he pretty much walked all of the time, especially after sitting for any length of time. A July 2002 MRI report for the lumbar spine noted postoperative changes related to the L4-L5 disc space fusion but was otherwise normal. A letter of transmittal of the records from the Veteran's employer to VA was dated in April 2005. The letter noted that the Veteran retired in October 2002. The letter also said the Veteran began to receive Social Security Administration (SSA) disability in March 2003. Records from Dr. Williams were obtained in April 2006. They also included copies of records from Dr. Edwards dated in 1995 and reports from Dr. Williams from 2002 to 2005. There are no entries to identify a low back or cervical spine disorder in service or to relate any current disorder to service. A treatment entry from May 2005 noted that the Veteran injured his right leg when he was repairing a golf cart. The cart ran over his leg. The Veteran was noted to walk with a limp that favored the right leg. Records from J. D. Carnes, M.D., were received in May 2006. The records pertained to routine care for the Veteran. He was seen for problems with his right leg in June 2005. It was noted that he had been run over by a golf cart. Dr. Carney noted immense swelling of the leg. He also noted that the Veteran had decreased sensation on the right leg due to right leg sciatica or neuropathy. Records from R. M. Shugart, M.D., document evaluation and treatment for the Veteran's low back and right leg injury on the job in May 2001 through July 2002. There is no reference to any type of low back or cervical spine injury in service or that any current complaints are related to service or the Veteran's service-connected left knee disability. The RO obtained the treatment records from B. D. Kaplansky, M.D. There were numerous entries covering a period from May 2004 to February 2006. The records show the Veteran was treated for low back pain and radiculitis on a number of occasions. The initial visit report of May 2004 noted a history of chronic low back and right lower limb pain and that the Veteran had been injured at work in 2001. An EMG/NCV report from June 2004 was said to show remote right L5 radiculopathy and marked multi-level right greater than left dorsal ramus neuropathy for the lumbar spine at L4 and L5 levels. The Veteran had a flare-up of his back and right leg pain when he fell on some ice in January 2006. The Veteran received a number of caudal epidural corticosteroid and anesthetic injections as part of his treatment. The records are devoid of any complaints involving the left knee or evidence of antalgic gait related to the Veteran's left knee. Treatment records from Dr. Canavati for the period from June 1989 to September 2002 were received in June 2006. Dr. Canavati initially saw the Veteran for complaints of left shoulder pain and left-sided cervical pain in 1987. He reported that a cervical myelogram at that time showed no surgical lesion. He also said the Veteran had an EMG/NCV study in 1987 that suggested mild carpal tunnel syndrome, worse on the right. He was seen in June 1989 because of complaints related to an injury at work in February 1989. He was found to have a C6 disk herniation and had a surgical repair in June 1989. The injury that led to the surgery was work-related. There was no mention of any type of injury in service. The Veteran was seen again in August 1992. The Veteran had been noted to have done well since his surgery in 1989 until he suffered a sudden onset of pain in the posterior neck while at work in May 1992. An EMG reportedly showed evidence of a chronic C8 radiculopathy and a subacute C7 radiculopathy. The impression at that time was possible left C7 radiculopathy. An MRI of the cervical spine was interpreted to show small enhancing epidural scar to the right of midline at the C6-7 level related to prior disc surgery and mild left-sided foraminal stenosis at the C5-6 level. The report stated there was no evidence of herniated disc or impression upon the spinal cord. The Veteran was seen again in March 1995. The results of the prior EMG and MRI studies were noted. Dr. Canavati said that he did not recommend further surgery on the cervical spine. The Veteran was seen again in January 1996. As noted above in the records from Dr. Edwards, the Veteran was involved in a MVA. The Veteran was noted to complain of neck pain and intermittent numbness of the hand, particularly the fourth and fifth fingers. He also had pain in the left shoulder and arm. Dr. Canavati noted he had reviewed a cervical spine MRI and it showed C6-7 disc protrusion on the right. His assessments were flexion-extension injury of the cervical spine, tiny right C6-7 disc protrusion, and status post cervical laminectomy in 1989. Additional entries dated in August and September 2002, respectively, reflect evaluations of the Veteran's low back and right leg pain. The initial evaluation of August 2002 was sent to Dr. Carnes. Dr. Canavati noted the Veteran's history of lumbar fusion in September 2001. He also noted the Veteran's continued complaints of low back and right leg pain. He said a post-surgical MRI showed changes compatible with L4-5 interbody fusion. The impression was chronic neurogenic pain in both lower extremities and status post L4-5 instrumented fusion in September 2001. An entry from September 2002 noted the Veteran's history of injury in 1998 and his subsequent treatment from several physicians to include surgery, physical therapy, and injections. There was no mention of the Veteran's military service and a back injury at that time or that his service-connected left knee affected his gait or contributed to any ongoing symptomatology. The Veteran was afforded a VA examination to assess his low back and cervical spine issues in October 2006. The examiner reported that he had reviewed the claims folder as part of the examination. He noted the Veteran's complaints of left knee pain in service and treatment for same. The examiner provided an incorrect history of post-service complaints of left knee pain and treatment by referring to a MVA in 2000 rather than in 1996. In regard to the low back, the examiner noted the Veteran's complaint of developing low back pain following his march from the firing range in service. The examiner related a history from the Veteran that he had a work-related lower back injury in 1972. He noted the work-related injury in 1989 and said the Veteran had surgery on the cervical spine in 1990. He also said the Veteran had another low back injury in September 2001. The examiner provided diagnoses of strain of the lumbosacral spine, work-related injury of the cervical spine, status-post discectomy, and work-related injury of the lumbosacral spine, status-post discectomy. The examiner then opined that the Veteran's present cervical and low back conditions were not likely service connected. He referred to the injuries as work related. He also said that the Veteran's service-connected left knee injury was not affecting his gait and that is why it had no effect on his spine condition. The Veteran was also afforded a VA examination for his then-pending claim for an increased rating for his left knee disability in October 2006. Pertinent findings were that the Veteran had a full range of motion; there was some pain from 130 degrees. There was good stability of the anterior and posterior cruciate ligaments. The Veteran's gait was said to be normal. The Veteran submitted a formal claim for entitlement to a TDIU rating in November 2006. He listed his employment with the same employer from July 1966 to September 2002. He did not identify any specific disability(ies) as the basis for his inability to continue to work. The RO issued a rating decision that granted service connection for tinnitus and a 10 percent rating and service connection for hearing loss with a noncompensable disability rating in November 2006. The Veteran's claim for an increased rating for his left knee, service connection for his lumbosacral disability and entitlement to a TDIU rating were denied. The Veteran's left knee disability rating remained at 10 percent. In regard to the lumbosacral disability the RO determined there was no evidence of a back disability in service and the evidence did not establish that the lumbosacral disability was related to the Veteran's service-connected left knee disability. The TDIU rating was denied as the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) and that his service-connected disabilities did not cause him to be unable to obtain or maintain substantially gainful employment. The Veteran submitted his notice of disagreement (NOD) with the denial of service connection for a lumbosacral disability and entitlement to a TDIU rating in January 2007. He also raised a new claim for service connection for a cervical spine disability. The Veteran referred to injuries suffered in his MVA in 1971. The Veteran's records from the SSA were received in February 2007. The Veteran was initially denied benefits in November 2002; however, the denial was reversed on reconsideration that same month. The Veteran's disabilities were listed as disorders of the back - discogenic and degenerative. A review of the medical evidence shows that it is mostly duplicative of evidence already of record. There are additional physical therapy records dated in 2001 and 2002 related to the Veteran's lumbar surgery in September 2001. There are no medical entries that give a history of either a cervical or lumbosacral injury or disability in service. Moreover, there were no entries, medical or otherwise, to relate any currently diagnosed disability to the Veteran's military service or to his service-connected left knee disability. The Veteran perfected his appeal of the denial for service connection for his lumbosacral disability in November 2007. He said, even though he had had a subsequent injury to his back, he had had low back pain earlier from his left knee during service. He submitted a statement from a B. D. Kaplansky, M.D., in support of his claim. Dr. Kaplansky said the Veteran's low back pain began in the military when he injured his left knee. He said the Veteran developed an antalgic gait and altered body mechanics. Dr. Kaplansky also said that the Veteran said he had low back pain since service. Dr. Kaplansky did not provide any rationale for his opinion or cite evidence to support his opinion. The Veteran also submitted a statement from an individual, [redacted]. Mr. [redacted] said that he was stationed with the Veteran in 1969. He said the Veteran and his wife moved to an upstairs apartment in the same building where he and his wife lived. He said the Veteran could not lift too much and he would help out. He said he visited the Veteran some years after service and the Veteran mentioned several times that he was still having problems with his back. The Veteran testified at a hearing at the RO in December 2008. The issues involved his claimed lumbosacral disability and TDIU rating. The Veteran's representative stated on the record the extent of the Veteran's service-connected disabilities. The Veteran testified that he developed back pain in service when he had to walk back from the firing range in 1969. He testified that he had difficulties at the range due to his left knee - he was on a long-term profile because of the left knee. He also testified about living in the same apartment building as Mr. [redacted]. He said he had a lot of difficulty going up and down the stairs and that Mr. [redacted] would help him with anything he needed help with at the time. He finally moved into a ground floor apartment. The Veteran contended that he had continual back pain since service even though he had subsequent injuries at his post-service employment. Additional records from Dr. Kaplansky were received in December 2008. The records covered a period from February 2006 to March 2008. The initial entry from February 2006 is duplicative of a prior entry. The Veteran was seen for back pain beginning in August 2006. The entry said there was no new trauma. His gait was reported as normal at that time. The Veteran complained of worsening numbness and weakness in the right leg over the last several months in September 2006. He thought it affected his gait. Dr. Kaplansky said the Veteran was noted to have a slightly antalgic gait on the right side. He had additional injections to treat his back and right leg pain. The Veteran was reported to do well following his treatments and was to return to the clinic as necessary according to an entry from October 2007. A final entry from March 2008 noted continued complaints of low back pain and lower limb pain. A review of the records does not reflect any discussion of a history of the Veteran's back pain; specifically, there is no mention of any type of back complaints in service, any history of antalgic gait involving the Veteran's left knee, or any impression, assessment, or diagnosis that the Veteran's current lumbosacral/low back diagnoses are related to service or are caused or aggravated by the Veteran's service-connected left knee disability. The Veteran testified at a video conference hearing in December 2009. The Veteran's representative again restated the Veteran's several service-connected disabilities and their respective disability ratings. The Veteran again asserted that he injured his back on the march from the firing range in 1969. He said he had a "real bad" limp with his left leg and that caused his back to hurt. He repeated his testimony that his neighbor, Mr. [redacted] helped him carry things in their quarters and that his civilian boss helped him in his office. The Veteran said he was on SSA disability due to his cervical spine, lumbar injury and left knee disability. He said his doctor had said that his left knee had caused his problems because he had to change the way he walked. He said treatment records at the time of his MVA in 1971 showed that he nerve damage at C4-C5 but that it did not require surgery at that time. The Veteran said he had had surgery on his left shoulder and left arm as a result of injuries he suffered in the MVA. He said it was due to nerve damage in his neck. He further stated that he had second work injury that caused him more problems. The Board remanded the Veteran's case for additional development in April 2010. The Appeals Management Center (AMC) wrote to the Veteran that same month. The Veteran was asked to identify any additional records that could be obtain to support his claim or to submit them himself. The Veteran responded in May 2010. The Veteran referenced treatment records for a period immediate after service but said the records were destroyed. The AMC received additional treatment records from Dr. Canavati in June 2010. The records covered two separate periods, one was from January 1987 to January 1996 and the second was from October 2001 to December 2004. The Board had specifically requested the earliest records from 1987. The initial record is a report of a NCV study from January 1987. The report noted the Veteran complained of intermittent numbness in the right hand for several years that had recently become worse. The Veteran gave a history of a shoulder and elbow injury in 1983. The final impressions were that results were suggestive of very early changes associated with right carpal tunnel syndrome (CTS). A clinical entry from March 1987 noted that the Veteran had suffered an injury at work in January 1987. He had had a sudden pull of the left upper extremity that resulted in what seemed to be left lateral rotation of the cervical spine and stretch of the left upper extremity. He subsequently developed pain over the left shoulder and the left side of the neck with no radiation to the upper extremities. An x-ray of the cervical spine at that time was interpreted to show an essentially normal study. There was no evidence of fracture and posterior alignment was maintained. The Veteran had an additional x-ray in April 1987. This report said the cervical spine was essentially normal in appearance and alignment with normal apparent disc spacing. The report noted minor marginal vertebral body changes that were said to be consistent with very early degenerative arthritis spurring. The Veteran also underwent a cervical myelogram in April 1987. The report noted that the cervical cord was normal and the cervical nerve root sleeves outlined normally. A clinical entry from April 1987 reviewed the results of the above studies. The Veteran was given a return to work slip. The Veteran was seen again in June 1989 for complaints of neck pain and intermittent left shoulder pain. He had suffered an injury at work in February 1989. An EMG/NCV from April 1989 found evidence of possible but recommended evaluation of diabetes mellitus. The entry noted a recent MRI showed evidence of disk herniation at C6-7. Surgery was recommended. The records show the Veteran underwent right C6 partial hemilaminectomy and foraminotomy with removal of extruded disc in June 1989. Several additional entries document the Veteran's post-surgical evaluations. An entry from November 1989 noted that the Veteran had had marked improvement. Dr. Canavati said that he believed the Veteran had reached the point of maximum medical recovery. He also said the Veteran would be entitled to a partial permanent impairment rating of 20 percent of the body as a whole. The records contain duplicate entries regarding treatment for the Veteran's subsequent work-related injury in May 1992 as well as his being seen after his MVA in January 1996. The second period of records note treatment provided to the Veteran for his low back injury and surgery in 1991 and his postoperative follow-up. This included physical therapy records that were included with the SSA records previously obtained. The Veteran continued to receive outpatient care for his complaints to December 2004. As with the records from Dr. Kaplansky, there is no mention of any type of back injury or back pain in service. There is no mention of the Veteran's MVA in 1971. Finally, there is no opinion to link any diagnosed back or cervical spine disorder to the Veteran's military service or that his service-connected left knee disability had caused or aggravated any back or cervical spine disorder. The Veteran was afforded a VA examination in May 2010. The same examiner who evaluated the Veteran in October 2006 conducted the examination. The examiner reported that he had reviewed the claims folder as part of the examination as well as the prior examination report. He noted the Veteran's complaints of left knee pain in service and treatment for same. The Veteran said he had complaints of back pain in 1969 and that he was told he had a back strain. The examiner noted that the STRs were negative for any mention of a lumbosacral or cervical spine injury. The examiner related a history from the Veteran that he had a work-related lower back injury in 1972. The examiner noted the work-related injury in 1989 and said the Veteran had surgery on the cervical spine in 1990. He also said the Veteran had another low back injury in September 2001. The Veteran complained of chronic lumbosacral spine pain that radiated into his right leg. The examiner said the Veteran's gait was noted as normal in the past. However, he was limping with his right leg during the current examination because of lower back pain radiating to the right leg. The examiner provided diagnoses of cervical spine work-related injury, status post discectomy C4-C5 and work-related injury of the lumbosacral spine, fusion of L4-L5 level. The examiner opined that the Veteran's present cervical and lumbosacral spine conditions were not likely service connected. He said there were documented work-related injuries to the cervical and lumbosacral spine. He noted that the Veteran was service connected for a left knee disability but said there was no limitation of motion of the left knee. He further stated that the Veteran was not limping on the left knee but on the right leg. He also stated that there was no leg length discrepancy. Finally, the examiner said that because the Veteran did not have any limp or leg length discrepancy there was no impact on the Veteran's lumbosacral spine as a result of the service-connected left knee disability. The AMC also completed requested development by obtaining an outstanding MRI from Marion General Hospital. The Veteran had said he had an MRI of his back and left knee in 2001. However, the reports provided were for an x-ray of the skull and an MRI done in August 2001 that related to the left shoulder. The AMC had specifically sought any records related to back pain/spine conditions. VA records for the period January 2008 to February 2011 were associated with the claims folder. The records contained several entries for treatment of back pain; however, it was noted that the Veteran received his primary care from a private physician. There were no entries to relate any current cervical spine or lumbosacral spine disorder to service. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2011); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991); see also McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. 466, 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2011). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). 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). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court or the United States Court of Appeals for the Federal Circuit (Federal Circuit), lay observation is competent. 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 v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). A disability may be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). Moreover, in general, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2011). The regulation addressing service connection for disabilities on a secondary basis, 38 C.F.R. § 3.310(b), was amended in September 2006. See 71 Fed. Reg. 52,744-52,747 (Sept. 7, 2006), effective October 10, 2006. The change was made to conform VA regulations to decisions from the Court, to include Allen. See 38 C.F.R. § 3.310(b) (2011). However, given the disposition of this issue, the change in regulation is of no consequence. Lumbosacral Spine The Veteran's STRs document his many complaints regarding his left knee as well as his being placed on a profile because of his left knee for much of his service. The STRs are devoid of any mention of any type of low back or cervical spine problems. Even though the Veteran has alleged that he suffered from back pain he said was identified as a strain as a result of a march from the firing range, the STRs do not support his contentions. Given the many entries related to treatment for the Veteran's left knee, it is reasonable to conclude that any back or cervical spine complaints would have been addressed in the STRs had they been made. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011)(where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Moreover, the Veteran explicitly denied any type of back problems on his Report of Medical History in August 1969. The first post-service medical evidence of a lumbosacral spine complaint is related to an injury at his employment, years after service. The records from Dr. Edwards, Dr. Canavati, Dr. Carnes, and Dr. Kaplansky well document multiple injuries of the lower back that are strictly related to events at work. There is no mention of any history of any type of lumbosacral-related symptoms or injury in service in any of the medical records. The Veteran did not submit a claim for service connection for a spine-related disability until December 2005, approximately 36 years after service. He had previously sought, and been granted, service connection for his left knee in April 2000. He did not list a spine-related disability when he filed his claim for his left knee in August 1998. As the significant amount of medical evidence shows, he had suffered numerous injuries to his left shoulder, left elbow, lower back and cervical spine over a long period of employment - all after service. The only evidence in support of the Veteran's claim for direct service connection are his lay statements. In Buchanan v. Nicholson, 415 F.3d 1331, 1337 (Fed. Cir. 2008), the Federal Circuit held that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Indeed, "'competent lay evidence can be sufficient in and of itself'" to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (quoting Buchanan, 451 F.3d at 1355). Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Id. at 1377. The Board does acknowledge the lay statement of Mr. [redacted]. However, his statement did not address the question of the Veteran having a back injury in service. Rather, he provided information that the Veteran had difficulty in climbing stairs to his apartment and he would help with carrying of items as needed. He also said the Veteran told him years later of having had back pain since service but Mr. [redacted] had no direct knowledge of any injury in service. He also had no direct knowledge of chronic symptoms exhibited by the Veteran. Even where competent lay testimony is offered, it is ultimately the Board's responsibility to evaluate the probative value of all evidence of record, lay or otherwise. See Caluza, 7 Vet. App. at 506 (holding that the Board "must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence"). The Board is entitled to "weigh the absence of contemporaneous medical evidence against the lay evidence of record." Buchanan 451 F.3d at 1337. In this case, there is no medical evidence of a chronic disease in service. There is no probative evidence of a chronicity of symptoms in service. As noted, the Veteran has related the onset of his lumbosacral spine complaints to service. However, he later denied having any type of back-related problems at the time of his separation examination. Further, as cited above, given the Veteran's many STR entries regarding his left knee, it would be expected that any other complaints would have been noted in the STRs as well. The significant amount of private medical records, as well as the two opinions from the VA examiner, relate the Veteran's current lumbosacral spine disorder to his post-service work-related injuries. There is no medical opinion to the contrary as it relates to a discussion of a direct nexus to service. Thus service connection for lumbosacral disability, status-post discectomy and fusion at L4-5, is denied. The Veteran has also alleged that his claimed lumbosacral spine disability was caused, or aggravated, as a result of his service-connected left knee disability. The preponderance of the evidence is against this theory of service connection as well. The Veteran is not competent to make such a connection based on his lay opinion. He did submit a statement from Dr. Kaplansky who said the Veteran's low back pain began in the military when he injured his left knee. He said the Veteran developed an antalgic gait and altered body mechanics. Dr. Kaplansky also said that the Veteran said he had low back pain since service. The many treatment records from Dr. Kaplansky do not support his one-time statement of the Veteran having back pain in service, or that antalgic gait related to the left leg led to the development of any type of back pain/disability. To the contrary, the treatment records well document multiple complaints of right leg pain that caused an antalgic gait. The same finding that is noted on multiple occasions by the several other physicians whose records are associated with the claims folder. There is no objectively noted findings to show an antalgic gait related to the Veteran's left knee and clearly no objective findings, by way of a treatment entry, that the Veteran's left knee disability has caused or aggravated the Veteran's lumbosacral spine disability. Absent a rationale for the opinion by Dr. Kaplansky, it is afforded no probative value in light of the significant evidence to the contrary. The VA examiner provided a negative opinion in this regard on two occasions. He relied on the many clinical entries of record to conclude that there was no problem with an antalgic gait related to the left knee. It was the Veteran's right leg-a condition that he is not service-connected for and one that he has not sought service connection for. Service connection for lumbosacral disability, status-post discectomy and fusion at L4-5, as secondary to the Veteran's service-connected left knee disability, is denied. Cervical Spine The STRs are negative for evidence of any type of cervical spine disorder during the Veteran's period of active service from 1967 to 1969. The STRs do contain treatment records and a line of duty investigation regarding the Veteran's MVA in July 1971. The records show that the Veteran was enroute to a duly authorized period of ACDUTRA when he was involved in the MVA. Contemporaneous medical records from Porter Memorial Hospital note that the Veteran complained of pain in the right knee and hand and that his neck was stiff and he could not move it back. An x-ray of the cervical spine was interpreted to show minimal hypertrophic changes with no demonstrable fracture, dislocation or intrinsic bone disease. He was diagnosed with contusions and abrasions of the scalp and knees, a cerebral concussion, contusions of the right hand and post-cervical muscle sprain. As noted above, the x-ray findings of hypertrophic changes can be evidence of arthritis. However, this was beyond one year after active duty service, and the evidence of record does not establish any impairment to the Veteran at the time that was related to the spurring to warrant consideration of service connection on a presumptive basis. The Veteran did not seek service connection for a cervical spine disability until January 2007. As the private medical records show, he suffered a strain at work in 1987. Cervical spine x-rays at that time showed findings similar to those of July 1971. The strain in 1987 was followed by a more significant injury in 1989 that led to the Veteran having a cervical laminectomy. None of the private medical records associated with the claims folder make any reference to the MVA of 1971 or that there was any existing disability at the time the Veteran suffered his first post-service cervical spine injury at work. The Veteran has not provided any evidence other than his own contentions that his current cervical spine disability is related to service, to include the MVA of July 1971. The VA examiner has reviewed the evidence of record and has related the Veteran's cervical spine disability to his work-related injuries. There is no medical evidence of record that is contrary to the opinions. Unlike the facts in Barr v Nicholson, 21 Vet. App 303 (2007), where the veteran was said to be competent to identify a disability of varicose veins, or in Jandreau a dislocated shoulder, this Veteran's disorder did not manifest itself in service or during a period of ACDUTRA. For the same reason, the Federal Circuit's opinion in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) is unavailing in this case. The claim requires competent medical evidence to link the current disorder, a disorder that was developed after service, to the Veteran's period of active military service or to his period of ACDUTRA. The only medical evidence of record to address that issue is against such a finding. The Veteran's claim for service connection must be denied. TDIU Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2011). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service- connected disability, or rated at 70 percent for two or more service-connected disabilities with at least one disability rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment may be held to exist, on a facts found basis, such as a sheltered workshop. Factors to be considered include the veteran's education and employment history. Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Individual unemployability must be determined without regard to any non-service connected disabilities or a veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (2011) (age is not a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service-connected for tinnitus, rated as 10 percent disabling, connected left knee chondromalacia patella, rated as 10 percent disabling, and hearing loss of the left ear, rated at a noncompensable level. His combined service connection disability rating is 20 percent. The Veteran did not meet the disability rating requirement for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) at any time during the pendency of the current appeal. He did have more than one service-connected disability but did not have one disability rated at 40 percent or more. Further, he did not have a combined disability rating of 70 percent. The Veteran may also be entitled to TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the combined effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). However, the Veteran has not raised any argument that his tinnitus, left knee, or left ear hearing loss disabilities have had such an effect on him. His claim was based on establishing service connection for his lumbosacral and cervical spine disabilities-the same two disabilities that were the basis for SSA disability claim. The evidence of record does not reflect that the Veteran's tinnitus, left knee and hearing loss disabilities have had any impact on his employability beyond what is contemplated by the schedular ratings assigned for each. The significant amount of medical evidence of record does not record any problems or interference with work, or obtaining work that is related to the Veteran's three service-connected disabilities. Thus, there is no basis to refer the Veteran's case for consideration of an extraschedular evaluation. As the Veteran does not satisfy the criteria for a TDIU rating under 4.16(a) and his disabilities are not such as to warrant consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), his claim must be denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for the issues claimed or entitlement to a TDIU rating. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). III. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2011)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In addition, the Court has held 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran submitted his claims for the lumbosacral and TDIU issues in December 2005. The RO wrote to the Veteran in April 2006. He was advised of the evidence required to substantiate his claim for service connection as well as entitlement to a TDIU rating. The letter informed the Veteran of the types of evidence that would be beneficial in supporting his claim. He was further advised of the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. He was asked to submit any medical reports that he possessed. Finally, the letter included notice on how disability ratings and effective dates are determined. See Dingess. The Veteran's claim was denied in November 2006. He submitted his notice of disagreement (NOD) in January 2007. He included a claim for service connection for a cervical spine disability at that time. The RO wrote to the Veteran in regard to his latter claim in September 2007. The letter provided the same notice as to how to establish service connection as the letter of April 2006. The Veteran submitted additional evidence in response to the notice letter in October 2007. The Veteran's cervical spine claim was denied in March 2008. The Board remanded the case for additional development in April 2010. The AMC wrote to the Veteran in that regard in April 2010. In May 2010, the Veteran responded that older records of his treatment had been destroyed and were unavailable. The Veteran's claim was re-adjudicated and the issues on appeal denied in August 2011. He was issued a SSOC that listed the evidence added to the record and the basis for the continued denial of his claim. The Veteran has not disputed the contents of the VCAA notice in this case. He was afforded a meaningful opportunity to participate in the development of his claims. From the outset, he demonstrated actual knowledge of what was required to establish service connection as evidenced by his statements, the submission of evidence he believed supported his claims, as well as identifying evidence for VA to obtain. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his STRs, VA treatment records, private treatment records from sources identified by the Veteran, SSA records, and VA examination reports. The Board remanded the claim for additional development. The Veteran testified at two hearings in his case. The Veteran was also afforded a VA examination for his spine issues in November 2006. The examiner provided the opinions requested at the time. The Board had previously determined that the examination was inadequate as the examiner had provided several incorrect dates in citing to past events and had not addressed the 1971 MVA. The case was remanded for another examination. The same examiner evaluated the Veteran in May 2010. The examiner recorded a history of injuries from the Veteran. Although the history did not exactly match the chronology of injuries suffered by the Veteran, the examiner still identified the Veteran's work-related injuries and required surgeries. He also reviewed the private medical records that provided a thorough listing and review of all treatment and evaluations of those injuries, to include the SSA records. The examiner concluded that the evidence showed the Veteran's claimed lumbosacral and cervical spine disabilities were related to post-service work-related injuries. The Board finds that the examination report contains the necessary medical opinion. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. The Board finds that the May 2010 VA opinion obtained in this case is adequate. The Veteran was not afforded an examination in regard to the TDIU issue. His combined service-connected disability rating of 20 percent did not meet the regulatory requirement to establish entitlement to a TDIU rating. He did not present any argument or evidence that his service-connected disabilities were such that they required consideration for an extraschedular assessment. Thus, the medical evidence of record, along with the legal evidence regarding the Veteran's disabilities and their ratings, was sufficient to decide the issue and no examination was required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. ORDER Entitlement to service connection for lumbosacral disability, status-post discectomy and fusion at L4-5, to include as secondary to service-connected left knee chondromalacia patella, is denied. Entitlement to service connection for cervical laminectomy at C6, is denied. Entitlement to a TDIU rating is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs