Citation Nr: 1309282 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-31 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to the service-connected right knee disability. 2. Entitlement to service connection for a neck disability, to include as secondary to the service-connected right knee disability or the service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from February 1960 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for cervical fracture of C-2 (claimed as broken neck), and found that new and material evidence had not been submitted to reopen the claim for service connection for chronic back pain s/p multiple back surgeries, as secondary to the service-connected degenerative joint disease s/p medial meniscus repair of the right knee. In May 2011, the Board reopened the claim for service connection for a back disability, and, after reopening the claim, remanded the claim for service connection for a back disability and the claim for service connection for a neck disability, to the RO via the Appeals Management Center (AMC), in Washington, DC, for further evidentiary development. Specifically, the Board directed that the AMC obtain updated VA treatment records, obtain any additional records identified by the Veteran, and schedule the Veteran for a VA examination to determine the nature and etiology of any back and/or neck disability found. The record reflects that in May 2011, the AMC obtained updated VA treatment records for the Veteran; the AMC sent the Veteran a letter requesting that he complete an authorization for release of information for each private health care provider that had treated his claimed conditions; and the Veteran underwent the requested a VA examination in May 2011; thus, the Board concludes that there was substantial compliance with the remand directives of May 2011. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The evidence of record preponderates against a finding that the Veteran has a low back disability related to his active military service or any incident therein, or that it is the result of his service-connected right or left knee disabilities, on either a causation or aggravation basis. 2. The evidence of record preponderates against a finding that the Veteran has a cervical/neck disability related to his active military service or any incident therein, or that it is the result of his service-connected right or left knee disabilities, on either a causation or aggravation basis. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service, and is not shown to be due to, the result of, or aggravated the service-connected right or left knee disabilities. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. A neck disability was not incurred in or aggravated by service, and is not shown to be due to, the result of, or aggravated by the service-connected right or left knee disabilities. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in January 2006 and March 2006 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. These letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also notes that the RO sent the Veteran a letter in September 2006 informing him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the appellant. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran, to include primarily private treatment records, as well as some VA treatment records. Additionally, the Veteran underwent a VA examination in May 2011, which included a thorough examination, a detailed review of the claims folder, and a history obtained from the Veteran. Therein, examination findings were reported, along with diagnoses and opinions, which were supported in the record; thus, the May 2011 VA examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. 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); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Service treatment records (STRs) do not reveal any complaint of, treatment for, or diagnosis of a back or neck disability. Service connection for the Veteran's right knee disability was granted in a rating decision dated in March 1973. VA received a letter dated in September 2002 from CH2MHILL, the Veteran's employer in 1977. This letter indicated that a search of company records revealed no records related to a work injury involving the Veteran in 1977. Treatment records from Fort Sanders Presbyterian Hospital document that the Veteran had a herniated nucleus pulposis (HNP) removed at L-5, S-1 in June 1977. Treatment records from Dr. R.B. indicate that the Veteran was in a motor vehicle accident in November 1990. As a result, he required an anterior cervical discectomy and fusion at C6-7. Additional treatment records from Dr. R.B. and treatment records from Fort Sanders Regional Medical Center reflect that the Veteran reported feeling a snap in his lower back after reaching back to wash the back of his left calf in the shower in October 1998. Thereafter, he indicated that he had back pain. A recurrent discectomy on the left at L5-S1 as well as a decompressive L4 laminectomy was performed in October 1999. After evidence of motion at L4-5, a posterior lumbar interbody fusion was attempted in June 2000. This operation was unsuccessful, however, because of an inability to "free up the scar adequately." In November 2000, an anterior lumbar interbody fusion with cages at L4-5 and L5-S1 therefore was performed. The Veteran experienced a gradual return of his pain and it appeared that there was some nonunion. As such, implantation of an intrathecal programmable morphine pump occurred in March 2002. Surgeries were performed thereafter to correct pump problems and malfunctions. An October 2002 treatment record from Dr. R.B. reveals that the Veteran reported a fall a few weeks prior which resulted in injuries unrelated to his back and neck. The cause of this fall is not discussed. In a letter dated in January 2003, Dr. J.-F.R. noted that the Veteran reported a giving way episode in his right knee which caused him to fall in early October 2002 and resulted in injuries unrelated to his back and neck. In a letter dated in September 2003, Dr. R.B. stated that the Veteran complained of significant difficulties with his right knee, causing that leg to give out. The Veteran was afforded a VA examination in August 2004 with respect to his left leg. He reported that he fell after his right knee gave out in June 2004, causing a left knee injury. After completion of the examination, the examiner opined that the Veteran had left knee ligament laxity as a result of his service-connected right knee disability. Service connection for the Veteran's left knee disability was granted in a rating decision dated in September 2004. A VA treatment record dated in November 2005 reflects the Veteran's complaint that his right knee periodically gives way and causes him to fall. This record also reflects the Veteran's statement that the last such incident occurred one to two months prior. Treatment records from Dr. H.B., Dr. J.W., and the Methodist Medical Center reveal that the Veteran suffered a C-2 fracture after falling down approximately 13 stairs in late November 2005. They also reveal the Veteran's report that he fell because his right knee suddenly gave out on him. Finally, they reveal the Veteran's report that his right knee gives out on him at least once or twice per year and his wife's report that his right knee gives out more often than that. In a letter dated in December 2005, Dr. R.B. noted that the Veteran frequently falls because his right knee gives out. Dr. R.B. stated his belief that the Veteran's "service-related knee injury and multiple falls have contributed to his lumbar spine condition and chronic back pain." VA also received a letter from Dr. J.W. dated in December 2005. Dr. J.W. stated that the Veteran's fall down the stairs was "apparently" "due to a service connected injury to his right knee, which apparently has given him problems for quite some time." Dr. J.W. further stated that his current C-2 fracture "does appear to be as a result of a fall, which was manifested by a prior existing injury to his knee." The Veteran underwent a VA joints examination regarding his right knee in March 2006. The examiner noted that the Veteran's knee was normal. He further noted that he was unable to elicit any instability. Lachman's test and an anterior drawer test produced negative results. As such, no objective evidence of "occasional buckling and giving-away of the knee" was evident. In May 2006, the Veteran underwent a VA joints examination regarding his left knee. No instability or joint laxity in this knee was found. VA received a statement dated in approximately June 2006 from Dr. H.B. Dr. H.B. noted that the Veteran's contention that his right "knee problems have directly, or very, very nearly directly caused several other medical problems is plausible." For instance, he noted that "loss of normal function in the Veteran's right knee has almost certainly caused his left knee instability because of altered gait. This, in turn, has lead to [his] neck fracture." In a statement dated in August 2006, the Veteran indicated that his left knee gave way in November 2005, causing a fracture to his C-2 when he fell down the stairs. VA received a statement from B., the Veteran's former coworker, dated in June 2007. B. recalled that the Veteran fell at work in 1977, was hospitalized, and underwent surgery. VA further received a statement from D.P., the Veteran's friend, dated in August 2007. D.P. recounted that the Veteran underwent surgery after falling and injuring his lower back at work in 1977. He also stated that he was aware that the Veteran's knee gave way causing this fall. Finally, VA received a statement from S.E., the Veteran's wife, dated in September 2007. S.E. indicated that the Veteran's right knee has been giving way and causing him to fall since they have been married. She further indicated that the Veteran's right knee caused him to fall down the stairs and hurt himself in November 2005. On a VA examination in May 2011, the diagnoses were cervical and lumbar spine arthritis and disc disease. The examiner opined that the Veteran's current back and neck disabilities/diagnoses listed above were not due to, caused by, or aggravated by any occurrences, injuries, or incidents in service, nor by any service-connected disabilities, including the right knee injury documented in the service treatment records. The examiner provided a lengthy rationale for the opinion provided. The examiner basically found that there was no supporting evidence showing that the Veteran had right knee residuals of injury (including instability) prior to the time of discharge from service, until the 1970s. The examiner also noted the additional documentation in the claims folder that provided insight into other potential etiologies for the Veteran's current spine condition, noting that a private treatment record dated in October 1999 described the Veteran's radicular symptoms in which his left leg went numb and fell out from under him. The examiner noted that there was a previous significant injury of the cervical spine, necessitating surgery, as a result of the 1990 motor vehicle accident. Further, the examiner essentially opined that the Veteran's service-connected knee disabilities were not so significant that they could be responsible for falls causing damage to the cervical or lumbar spine. The examiner also referenced, and provided rationale for discounting, the private medical opinions provided on behalf of the Veteran, to include by Dr. H.B. and Dr. J.W. Finally, the examiner indicated that the current body of medical literature identified a number of plausible etiologies for the development of the Veteran's degenerative arthritis and degenerative disc disease, including aging and obesity. The examiner specifically stated that the medical literature did not support the theory that any gait abnormalities arising from the service-connected knee disabilities would result in the spine or back disorders. III. Analysis 1. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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 if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). While arthritis is listed under 38 C.F.R. § 3.309(a), and the Veteran has current diagnosis of arthritis of the cervical and lumbar spine, the Board notes that the Veteran has not contended, nor has the evidence shown that such disabilities may be related to service. Rather, the Veteran has repeatedly contended that his back and neck disabilities are related to various falls he had due to his service-connected right and/or left knee disabilities. Further, service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay witnesses are also competent to testify as to some matters of diagnosis and etiology; when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Secondary service connection may be established for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Any increase in severity of a non-service-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 non-service-connected condition, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310, above, the regulation which governs claims for secondary service connection, was amended during the pendency of this claim and appeal. The intended effect of this amendment is to conform VA regulations to the Allen decision. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. 2. Discussion The Veteran essentially contends his back disability was caused by his service-connected right knee disability and that his neck disability was caused by his service-connected right knee disability or by his service-connected left knee disability. With respect to his back, he has claimed he injured his back after falling at work in 1977 because his right knee gave out. He further asserts that he has had back problems ever since. Alternatively, the Veterans claims that his claimed back disability is from the result of trauma sustained from falls caused by his service-connected knee disorders. With respect to his neck, the Veteran mostly argues that he fractured his neck in a November 2005 fall down stairs because his right knee gave out. However, he has also argued that his fall down the stairs and resulting neck injury occurred because his left knee gave out. Although the Veteran has mostly contended that his back and neck disabilities are related to his service-connected knee disabilities, the Board will nonetheless also consider whether service connection is warranted on a direct basis. With regard to the claim for direct service connection, initially, the Board notes that current disabilities of the lumbar and cervical spines, including degenerative arthritis and degenerative disc disease, have been shown by the record. STRs from the Veteran's period of active duty do not reveal any complaint of, treatment for, or diagnosis of a back or neck disability. What is missing for the claims for direct service connection is competent or credible lay or medical evidence of a link between the Veteran's current back disability and current neck disability and active service. Here, he has not submitted or identified any medical opinion or other medical evidence regarding an etiological relationship to service that supports such a claim. The only medical evidence addressing this relationship is the VA examination in 2011, in which the examiner specifically opined that the Veteran's current back and neck disabilities were not related to service, including noting that STRs were silent as to back or neck disabilities, but that the Veteran did have post-service back and neck injuries (in 1977, and in 1990 and 2005, respectively). Thus, the Board finds the VA examiner's opinion in 2011 to be probative and persuasive regarding the matter of whether the Veteran's current back and neck disabilities are directly related to service. With regard to any assertions by the Veteran that his current neck and/or back disabilities are related to service, the Board notes that while he is competent to report observable symptoms such as pain, the diagnoses of degenerative arthritis and degenerative disc disease, and the etiology thereof, requires medical expertise. These disorders are simply not the types of disabilities for which lay evidence may be competent. See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra. Moreover, the Veteran's lay contentions of a causal relationship between a current neck and/or back disability and active service are outweighed by the more probative VA opinion that was provided in May 2011. In light of this evidentiary posture (including consideration of the evidence of record; the length of time between the Veteran's discharge from service and the first medical notations of back and neck disabilities; and the absence of any medical opinion suggesting a causal link between such disabilities and service), the Board finds that the preponderance of the evidence is against the claims of direct service connection for a back disability and for a neck disability. Gilbert v. Derwinski, supra. With regard to the claims for secondary service connection, the Board notes that the Veteran has submitted letters from private medical providers, including Dr. R.B., Dr. J.W., and Dr. H.B., addressing whether any current back and neck disabilities are causally related to his service-connected right and/or left knee disabilities. Further, in May 2011, a VA medical provider specifically addressed whether the Veteran's current back and neck disabilities are causally related to his service-connected right and/or left knee disabilities, resulting in conflicting medical opinions. 38 C.F.R. §§ 3.303, 3.310. With regard to these conflicting opinions, the Board notes that when there is conflicting evidence in the record regarding whether the Veteran's currently claimed disorder is service-connected, it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In weighing these conflicting medical provider opinions, the Board concludes that the one rendered by the VA examiner in May 2011 is more persuasive and probative than the opinions rendered by the private medical providers cited above. First, the opinion in May 2011 included a review of the claims folder, as well as citations to specific relevant items in the claims folder, and a complete examination and review of history from the Veteran. Moreover, this opinion provided a lengthy rationale, including addressing the functional status and severity of the right knee disability, after the in-service injury years ago, as well as the functional status and severity of the left knee disability. Indeed, the Board notes that a review of the record shows that the service-connected right knee has been rated as 10 percent disabling since the grant of service connection 1973, and the left knee disability has been rated as 10 percent disabling since the grant of service connection in 2003, and arguably both the right and left knee have shown minimal to mild impairment. Further, in the rationale, the VA examiner in May 2011 specifically addressed the private opinions of Dr. R.B., Dr. J.W., and Dr. H.B., and explained why such opinions were deficient. The Board also notes that those private medical opinion providers are conclusory and without sufficient supporting rationale, and did not include a review of the claims folder or a review of the Veteran's complete medical history. Thus, the Board finds that the May 2011 VA examiner's opinion is well reasoned and based on an objective, independent review of the relevant evidence and clinical evaluation. Further, the May 2011 VA examiner's opinion has the proper factual foundation and, therefore, is entitled to significant probative weight. See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993). Thus, the Board concludes that the VA examiner's opinion in May 2001 is more persuasive and probative than the private doctor's opinions cited above. The Board recognizes that the Veteran has sincerely contended that his back and neck disabilities are related to his service-connected right and/or left knee disabilities. As noted above, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, but the Board does not find that the etiology or aggravation of degenerative arthritis or degenerative disc disease to be subject to lay diagnosis. See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra. Moreover, the Veteran's lay contentions of a causal relationship between a current neck and/or back disability and his service-connected knee disabilities are outweighed by the more probative VA opinion that was provided in May 2011. The preponderance of the evidence is therefore against the claims of service connection for a back disability and a neck disability, on both a direct basis and as secondary to the service-connected right and left knee disabilities.. Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for a back disability is denied. Service connection for a neck disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs