Citation Nr: 1313708 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 06-05 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from February 1968 to January 1970 and from February 2003 to February 2004, when he was ordered to active duty in support of Operation Enduring Freedom. He served in the Alabama Army National Guard, beginning in August 1981, with periods of active duty for training (ACTDUTRA) and inactive duty for training (INACTDUTRA) in between the two aforementioned periods of active service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the above of the Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for mild cervical degenerative disc disease; for status post medial meniscectomy and partial lateral meniscectomy, left knee; and for injury to the right knee. In March 2009, a Decision Review Officer (DRO) hearing was conducted regarding this matter. A transcript of this hearing has been associated with the claims folder. In December 2009, this matter was remanded by the Board, to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development, to include verifying all periods of active military service, ACDUTRA, and INACDUTRA; obtaining all associated service medical records; and arranging for a VA examination for the Veteran to determine the nature, extent, onset, and etiology of any cervical spine, right knee, and/or left knee disorder found. In October 2011, the Board again remanded this matter, essentially after finding that there had not been compliance with the Board's prior, December 2009, remand. See Stegall v. West, 11 Vet. App. 268 (1998). In the October 2011 remand, the Board directed that VA treatment records for the Veteran be requested from facilities in Mobile, Alabama, dated from mid June 2008 to the present; that his service treatment records be requested from all appropriate sources, to include the NPRC, from his first period of active duty service; and that new VA medical opinions be obtained regarding the etiology of the Veteran's claimed cervical spine disorder, left knee disorder, and right knee disorder. As the requested development has been completed to the extent possible, the Board concludes that there has been substantial compliance with the Board's October 2011 remand instructions. See Stegall v. West, supra. Although further delay is regrettable, for reasons set forth below, the issue of entitlement to service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's cervical spine disorder had an onset during or is related to a period of active service, or other qualifying period of service, or to a service-connected disability, on either a causation or aggravation basis; rather his cervical spine disorder preexisted a period of active service in 2003-2004, and the preponderance of the evidence is against a finding that such cervical disorder increased in severity in service. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence of record is in relative equipoise as to whether his left knee arthritis was incurred in or is causally related to his active military service. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in or aggravated by active service, and is not due to, the result of, or aggravated by a service-connected disability; and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. Giving the benefit of the doubt to the Veteran, left knee arthritis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 April 2004, May 2004, July 2004, and December 2009, that fully addressed the notice elements, and some of which were 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. Additionally, in the December 2009 letter mentioned above, the Veteran was advised 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. 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. The RO and the AMC have obtained all identified and available service and post-service treatment records for the Veteran. With regard to service treatment records (STRs), the Board notes that it appears that complete service records have been obtained for the Veteran's first and second periods of active duty, as well as for his long period of service with the Army National Guard. With regard to verification of the dates of the Veteran's military service, as well as the type of service during each period of enlistment (i.e. whether it was active duty, ACDUTRA or INACDUTRA), the Board notes that of record is a Report of Separation and Record of Service (NGB Form 22), an Army National Guard Retirement Points History Statement (NGB Form 23B), as well as various personnel records which document the Veteran's active duty service in the United States Army from February 1968 to January 1970, his active service from February 2003 to February 2004, when he was ordered to active duty in support of Operation Enduring Freedom; and his service in the Alabama Army National Guard, beginning in August 1981 and ending in February 2004. A review of the record shows that the specific dates for the Veteran's periods of INACDUTRA from September 2001 through August 2002 have been verified, as well as the specific dates for a period of ACDUTRA from February 2002 through March 2002. The record does not, however, clarify the specific dates for the Veteran's periods (if any) of INACDUTRA prior to September 2001 or subsequent to August 2002 and does not clarify the specific dates for his periods (if any) of ACDUTRA prior to February 2002 or subsequent to March 2002. However, his NGB Form 23B showed that during the period from August 1981 to February 2003, the Veteran earned points for IDT (for inactive duty for training or INACDUTRA) as well as AD points (for active duty, ACDUTRA, or annual training) toward retirement. Thus, the record suggests that the information of record regarding verification of the Veteran's service dates is not complete, but, as explained more fully below, is nonetheless found to be sufficient for the Board to render a decision in this matter. The Board also notes that VA examinations and opinions were procured in this matter. The Board previously noted (in the 2009 remand) that the November 2004 VA examination was inadequate as to the issues of service connection because the examiners failed to provide any opinions as to whether any of the claimed disorders were related to active duty, ACDUTRA, or inactive duty training, or to the service-connected lumbar spine disability. Subsequently, however, the Veteran underwent VA examinations in May 2010 and February 2012, in which opinions regarding etiology were provided. The Board notes that each of these VA examinations included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. These VA examinations in May 2010 and February 2012 are therefore found to be 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 claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence 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) from the Veteran's first period of active duty service, from February 1968 to January 1970, showed that his pre-induction examination in February 1968 was silent for any knee complaints or findings. In September 1968, he was seen in the orthopedic clinic for pain and swelling of the left knee, after twisting it the night prior. Examination showed swelling, tenderness, intact ligaments, and decreased range of motion. An x-ray of the left knee was negative. A pressure dressing was initially applied, after which he was doing better, but still had tenderness, and a cylinder cast was placed, to be removed 4 weeks later. In November 1968, he was seen in the orthopedic clinic after injuring his left knee in an "unknown manner" two days prior, and it was noted he had a similar injury two months ago. The impression was ligamentous strain and an Ace wrap was applied. On a Report of Medical History, prepared in conjunction with the Veteran's separation examination in November 1969, he responded "yes" to having or having had a trick or locked knee. It was noted that he injured his left knee at age 22, and had occasional problems now. On Reports of Medical History, prepared in conjunction with the Veteran's Army National Guard enlistment examination in August 1981, and in conjunction with a retention examination in April 1989, there was no mention of left knee problems, and the Veteran responded "no" to having or having had a trick or locked knee. Physical examination of the lower extremities at both times was normal. Private treatment records (which were submitted along with records from the Army National Guard) revealed that in June 1993, the Veteran was seen for neck pain, and the impression was cervicalgia, cervical sprain syndrome. An x-ray was reported to show anterior calcification at C6-7. On September 3, 1993 the Veteran had injured his left knee six days ago" and presented in an immobilizer. An x-ray did not demonstrate any abnormalities, but he did have slight anterior cruciate laxity, which was thought to be secondary to his old injury and not to his "fresh" injury. An MRI in November 1993 revealed a tear of the medial meniscus. Thereafter, in November 1993, he underwent a left knee arthroscopy. In early December 1993, he was able to return to light duty, and he was found to be improving. He was working on quad strengthening, and was ready to try gradually increasing his activities. On a Report of Medical History, prepared in conjunction with the Veteran's Army National Guard periodic examination in December 1993, the Veteran responded "don't know" to having or having had arthritis, rheumatism, or bursitis, and responded "no" to having or having had a trick or locked knee. It was noted that in November 1993, he underwent knee surgery for removal of torn cartilage. A physical examination of the lower extremities revealed pain and tenderness, with a range of motion deficit in the left knee. Private treatment records showed that in January 1994, the Veteran was found to be doing better and still needed muscle strengthening in the quad, but was going back to work. Also, in January 1994 he was put on a temporary physical profile, until April 1994, related to his knee surgery, and he was to do no running, squatting, lifting, or PT. In March 1995, the Veteran indicated he needed some information regarding his knee for his National Guard unit. He reported that the knee had been "functioning reasonably well" and he still has some mild symptoms but was handling his normal work duties without difficulty. The findings of arthroscopic examination were discussed, and he was advised to avoid activities that require squatting, kneeling, or putting the knee under unusual stress such as heavy lifting. On a Report of Medical History, prepared in conjunction with his National Guard examination in January 1996, the Veteran responded "no" to having or having had a trick or locked knee, and examination of the lower extremities was normal. A private treatment record dated in September 1997, showed that the Veteran was undergoing treatment for his shoulder and complained of some pain and stiffness in his knees and hands on occasion. In October 1997, he had some patella-femoral crepitation and grating, but not much in the way of tibial vara. He had symptomatic Baker's cyst and hamstring spasm, but no signs of phlebitis in the knee. An x-ray was not done, but it was noted that if the Veteran did not improve he would return for knee x-rays and an injection. A note was written for the Veteran indicating he could not do the PT portion of the National Guard physical capacity evaluation. On subsequent Reports of Medical History, prepared in conjunction with the Veteran's Army National Guard examinations in October 1999, and November 1999, he responded "no" to having or having had a trick or locked knee, and physical examination of the lower extremities was normal. Private treatment records showed that in May 2001, the Veteran underwent a cervical MRI which revealed an arthritic spur, no herniation. It was noted that he continued to have some intermittent problems, and had small spondylitic spurs that mildly protruded in the canal but had minimal effect on the cord and emerging nerve at 3-4 and 4-5, but no evidence of stenosis. In December 2002 he complained of neck pain, and x-rays of the cervical spine showed some anterior osteophyte formation at C6-7, but the disc spaces were well maintained. On a Report of Medical History, prepared in June 2003, the Veteran responded "yes" to having or having had swollen or painful joints; knee trouble; and any knee or foot surgery. He reported his knee had been giving him trouble. Physical examination of the lower extremities at that time was normal. In a letter dated in July 2003, Dr. Gaziano noted that the Veteran had a past medical history of "history of arthritis of hips and knees". An Individual Sick Slip dated in July 2003, from Fort Benning, showed that the Veteran was seen for shoulder, neck, and chest pains. Treatment records from Marvin Army Community Hospital showed that in August 2003 the Veteran presented with complaints of lateral and medial left knee joint pain for the past three weeks. He reported no recent injuries. The assessment was left knee pain, most likely arthritis with acute exacerbation. In October 2003, his diagnoses mild cervical degenerative disc disease with cervicalgia, and he was placed on a permanent profile. He was referred to a physical evaluation board for disposition. In November 2003, he was seen as a walk in and it was noted that he was being followed by "ortho because of DJD" and was awaiting MEB results. He requested renewal of his Celebrex. The assessment was DJD. A report of Medical Evaluation Board Proceedings, dated in November 2003, showed the Veteran had mild cervical degenerative disc disease with cervicalgia that existed prior to service and was not permanently aggravated by service. On a VA orthopedic examination on November 1, 2004, it was noted that records from June of last year showed degenerative joint disease of the neck. The Veteran reported he originally injured his left knee while on active duty, and was treated with casting. He reported that the knee continued to bother him over the years. He denied any problems with the right knee. X-rays of the cervical spine were not obtained as there was documentation of degenerative changes in the records. The impressions included cervical spondylosis and degenerative disc disease; mild anterior cruciate ligament insufficiency of left knee; status post left knee arthroscopy with medial meniscectomy and partial lateral meniscectomy; and right knee examination within normal limits at that time. On a VA spine examination on November 19, 2004, it was noted that knee x-rays revealed mild atherosclerosis, otherwise negative. The impressions included neck pain, cervical spondylosis, degenerative joint disease; and bilateral knee pain. In March 2009, the Veteran testified that after he injured his left knee during his first period of active service, his knee occasionally bothered him and would swell. He testified that he experienced right knee injuries "a lot of time son active duty during the weekends some kind of way". He testified he tried to make it to all of his weekend drills and summer training, that he may have been put on light duty a few times for his weekend training, and that his right knee started bothering him toward the end of his National Guard service. On the VA examination in May 2010, the Veteran reported he began to have chronic neck pain in the late 1980s and early 1990s, without specific injury or trauma. It was noted that he was placed on a physical profile in February 2003, eight days after activation, for a medical hold for pre-existing neck degenerative joint disease. He reported that his left knee injury occurred in September 1993 while he was playing basketball, and that he began to have right knee pain shortly after the left knee injury in 1993. It was noted that his active duty time from 2003 to 2004 was spent on medical hold at Fort Benning for pre-existing conditions. X-rays of the knees were taken in August 2009. The diagnoses included degenerative disc disease of the cervical spine and osteoarthritis of the bilateral knees. With regard to the knees, the examiner opined that the Veteran's bilateral knee condition preexisted active duty service in 2003-2004 and was not aggravated while he was on medical hold for pre-existing conditions. The examiner also opined that the Veteran's cervical spine condition pre-existed his second period of active duty (2003 to 2004) and was not aggravated therein. On a VA DBQ (disability benefits questionnaire) examination in February 2012, the examiner opined that the Veteran's cervical spine, left knee, and right knee disabilities were less likely than not proximately due to or the result of his service-connected condition. The examiner opined that the Veteran's cervical spine degenerative disc disease and stenosis/spondylosis were not related to the cervicalgia - cervical sprain syndrome which resolved in 1993, and that the preponderance of the medical evidence did not support that lumbar degenerative disc disease was the etiology of the Veteran's cervical degenerative disc disease. The examiner also opined that the Veteran's left knee DJD, diagnosed during the second period of active duty service, was not related to the left knee ligamentous strain diagnosed during the first period of active duty service. For rationale, the examiner indicated that STRs documented that the Veteran's left knee ligamentous strain was resolved in 1968, and that while a sprain or strain of the joints involves the muscles and ligaments (soft tissues) surrounding the joint region, the degenerative process involves the bony joint spaces, and that one is not the cause of, or related to, the other. The examiner also noted that there was no right knee condition shown in the STRs for the first period of active duty. With regard to the Veteran's left knee DJD, diagnosed during his second period of active duty service, the examiner opined that this was related to the injury incurred during INACDUTRA. For rationale, the examiner indicated that the preponderance of medical evidence does show that previous joint surgery is a known risk factor for developing latent onset DJD. Further on the VA DBQ examination in February 2012, the examiner indicated that the Veteran's right knee DJD was diagnosed during the second period of active duty service, from 2003 to 2004. For rationale, the examiner indicated that the preponderance of the medical evidence did not support contralateral joint DJD as the etiology or proximate cause of joint DJD osteoarthritis. The examiner also indicated the during the stance phase of walking, an individual places no more weight on a knee regardless of whether the contralateral (opposite) knee is normal or painful, noting that instead, the stance phase was shortened in the painful knee and prolonged in the painless knee. The examiner opined that this did not create an injury to the painless or contralateral knee. Finally, the examiner opined, with respect to both knee disabilities, that the preponderance of the medical evidence did not support lumbar or cervical degenerative disc disease as the etiology or proximate cause of joint degenerative joint disease osteoarthritis. In a VA DBQ addendum issued in October 2012, the VA examiner opined that the Veteran's current cervical degenerative disc disease was consistent with age, as the Veteran was 56 years old at the time of diagnosis in 2001. The examiner also opined that there was no evidence of aggravation of cervical degenerative disc disease, beyond the natural progression, during the second period of active duty from 2003 to 2004. III. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed under 38 C.F.R. § 3.309(a). 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 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). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation of that disorder during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) ; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent service. 38 C.F.R. § 3.306(b)(1); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Regarding the question of aggravation of a pre-existing condition, essentially, the law as interpreted under Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003, mandates that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153. Active service includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which an individual was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). In other words, service connection is available for injuries and/or diseases incurred during active duty or ACDUTRA, but (except for the exceptions listed) only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). Service connection for certain "chronic" diseases, such as arthritis, may also be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 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. See Allen v. Brown, supra. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. 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). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, residuals of a head injury in service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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, supra; Buchanan v. Nicholson, supra. 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. [Continued on Next Page] IV. Discussion 1. Cervical Spine Disorder The Veteran contends that he has current cervical spine disorder is related to his National Guard service. He has alternatively contended that his cervical spine disorder is related to his service-connected lumbar disorder. The record shows that the Veteran has a current disability, as there is competent medical evidence of cervical degenerative disc/joint disease. STRs from his first period of active service are negative for any report of finding of cervical spine problems. It is clear from the record that the Veteran's cervical problems started well after his first period of active service, but prior to his second period of active duty (from February 2003 to February 2004). In that regard, in May 2001, a cervical MRI revealed an arthritic spur, and in December 2002 x-rays of the cervical spine showed some anterior osteophyte formation at C6-7, with disc spaces were well maintained. Therefore, an initial determination must be made as to whether the Veteran's cervical condition was aggravated during his second period of active service, and if not, a determination must be made as to whether the Veteran's cervical condition is related to his service-connected lumbar disorder. Having duly established that the Veteran's cervical disability preexisted his second period of active service, the Board will discuss whether his cervical condition was aggravated during service. Review of the record, however, does not support a finding that a cervical disorder was aggravated during service. Although the Veteran was seen and treated for neck/cervical complaints in service, there is no indication that any such cervical disorder was incurred or aggravated by service. Further, on VA examinations in 2010 and 2012, the VA examiner opined that the Veteran's pre-existing cervical disorder was not aggravated by his second period of active service. In considering the opinions rendered by the VA examiners, the answer to the question of whether the Veteran's cervical condition was aggravated during active service ends there as there is probative and persuasive medical evidence speaking to the issue of whether the Veteran's preexisting cervical condition was aggravated during active duty service. Specifically the 2010 and 2012 VA opinions are found to be persuasive, as they are based on examination of the Veteran, on review of the Veteran's records , and were supported by specific rationale. Thus, after a review of the evidence, the Board concludes that there is no support for a grant of service connection for a cervical spine disorder based on aggravation of a preexisting disability. The next question to be resolved then is whether the Veteran's cervical spine disorder is causally related to the service-connected lumbar disorder 38 C.F.R. §§ 3.303, 3.310. In that regard, the Board notes that the VA examiner in 2012 addressed this question, and opined that there was no causational link between the Veteran's cervical disorder and his service-connected lumbar disorder. Although the VA examiner's opinions in 2012 are not perfect, the opinion is probative of the issue of whether the Veteran's cervical disorder may be attributable to his service-connected lumbar spine disorder (as he has contended) and included a review of the claims folder, and provided an explanation (albeit brief) for the opinion. Moreover, a review of the record shows no competent medical evidence to the contrary. The Board has carefully considered the statements and contentions of the Veteran, but finds that the weight of the competent medical evidence is contrary to those contentions. Where, as here, the Veteran's cervical spine disorder has not been shown by the evidence of record to have had an onset in a qualifying period of service, and has not been shown by objective medical evidence to have been worsened or aggravated during a period of active service, or caused by his service-connected lumbar disability, there is in essence no objective support within the record for the Veteran's contentions. Although the Veteran is certainly capable of describing the history in this case as well as his ongoing cervical symptoms before, during, and after service, his statements cannot serve to address questions of causation or aggravation of a cervical disability such as degenerative disc disease or degenerative joint disease, because those are medical questions beyond the purview of lay knowledge. Kahana v. Shinseki, supra. The Board finds that in this case the objective medical evidence outweigh the opinions, though sincere, of the Veteran. With consideration of the record, the Board finds the preponderance of the evidence is against the claim of service connection for a cervical spine disorder on both a direct basis (as a condition that was incurred in or was aggravated by active service) and as secondary to the service-connected lumbar disability. Consequently, the benefit-of-the-doubt rule does not apply and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, supra. 2. Left Knee Disorder The Veteran contends that he developed his left knee disorder while with the regular Army (during his first period of active service) and/or that it was caused by his subsequent Army National Guard service. The record shows that the Veteran has a current left knee disability, as there is competent medical evidence of degenerative joint disease. STRs from his first period of active service show he injured his knee twice, and was treated for ligament strain. It appears however, that this condition resolved. Thereafter, in September 1993, the Veteran injured his knee playing basketball. At that time he sustained a medial tear and underwent arthroscopic knee surgery. The record does not show, nor does the Veteran allege that he was on active duty, ACDUTRA, or INACDUTRA at the time of his left knee injury. Thereafter, the Veteran was seen for knee pain on several occasions, and it appears that at some point he developed left knee arthritis. In that regard, the Board notes that the VA examiner in February 2012 opined that the Veteran's left knee arthritis resulted from his left knee injury in September 2003, and that the left knee arthritis essentially had an onset during his second period of active service. In that regard, the Board notes that there are no competent medical opinions against the Veteran's claim that his current left knee disorder is related to a period of service. Moreover, the Board finds that the VA examiner's opinion in 2012 included an examination of the Veteran, a review of the Veteran's STRs, the claims folder, and his contentions, and that the opinion contained supporting rationale. Further, the competent medical evidence of record during the Veteran's second period of active service suggests that he had left knee symptoms during that period, and thereafter, on a VA examination in 2004, the diagnosis was mild anterior cruciate ligament insufficiency of left knee; status post left knee arthroscopy with medial meniscectomy and partial lateral meniscectomy. Thus, in giving the Veteran the benefit of any reasonable doubt, and because there is competent medical evidence both against and in favor the Veteran's claim that his left knee disorder is related to a period of active service, the Board finds that the competent evidence is in relative equipoise as to whether his left knee disorder is related to service. 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. Accordingly, in resolving reasonable doubt in the Veteran's favor, the Board concludes that the evidence is in relative equipoise, and therefore service connection for a left knee disorder is warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for a cervical spine disorder is denied. Service connection for left knee arthritis is granted. REMAND Unfortunately, a remand is required with respect to the issue of service connection for a right knee disorder. As explained below, the Board finds problematic the right knee opinions rendered by the VA examiners in 2010 and 2012. The Board initially notes that the Veteran has offered vague contentions as to how his right knee disorder is related to service; essentially he has contended that his right knee pain started after his left knee injury in 1993; that his right knee disorder developed as a result of his left knee disorder; and that his right knee disorder developed due to his National Guard service. The Board also notes that the Veteran has a current right knee disability, as shown by the most recent VA examinations which diagnosed osteoarthritis. STRs from the Veteran's first period of active service from 1968 to 1970, showed no report or finding of a right knee condition. Thereafter, for the period between 1981 (entry into National Guard service) and February 2003 (entry into second period of active duty), the record shows no report of any right knee condition or problems. With regard to the second period of active service, from February 2003 to February 2004, while it was clear that the Veteran had a pre-existing left knee condition, there was no indication of any right knee complaints/findings. Thereafter, on the VA examination in November 2004, it was noted that the Veteran had bilateral knee pain, but the right knee was assessed as within normal limits. An x-ray was also apparently taken, which was reported to reveal "mild atherosclerosis". The Board finds this finding curious, as X-ray studies of the knee are not expected to find a vascular disorder in the knee joint. Clarification is needed on this finding. Thus, the record appears to show that the first diagnosis of a right knee disability was not until several years later, in 2010, when VA treatment records and VA examinations showed he started to develop right knee problems and was diagnosed with right knee arthritis. According, a VA treatment record dated in January 2010, showed he had bilateral knee pain, worse on the left, and that for the past four or five years, the right knee had been bothering him a little bit and was giving him progressively more trouble as time went by. X-rays were taken, and the diagnoses included moderate lateral compartment osteoarthritis, right knee. On the VA examination in May 2010, it was noted that -rays were taken in August 2009 and showed osteoarthritis of the bilateral knees. The examiner opined that the Veteran's bilateral knee condition preexisted active duty service in 2003-2004 and was not aggravated while he was on medical hold for pre-existing conditions. On the VA DBQ examination in February 2012, the examiner opined that the Veteran's right knee disability was less likely than not proximately due to or the result of his service-connected condition. Further, the examiner provided a summary of the Veteran's medical history, noting three points: (1) during his first period of active service, from 1968 to 1970, his STRs were silent for a right knee condition; (2) for his "INACDUTRA" (which is presumably a general reference to the period between his entry into the Army National Guard in August 1981 and his entry into active duty in February 2003) his STRs were again silent for a right knee condition; and (3) right knee DJD was diagnosed during his second period of active service from 2003 to 2004. For rationale, the examiner indicated that the preponderance of the medical evidence did not support contralateral joint DJD as the etiology or proximate cause of joint DJD osteoarthritis, and that the preponderance of the medical evidence did not support lumbar or cervical degenerative disc disease as the etiology or proximate cause of joint DJD. The Board finds the May 2010 VA examination report and the February 2012 VA DBQ report to be problematic with regard to the claim for a right knee disorder. In that regard, in May 2010, the VA examiner opined that the Veteran's bilateral knee condition preexisted active duty service in 2003-2004 and was not aggravated while he was on medical hold for pre-existing conditions. The record reflects, however, that while a left knee condition clearly pre-existed his active service from 2003 to 2004, there is no indication that the Veteran had any right knee condition or disability that existed prior to the 2003 - 2004 period of active service. Further, in February 2012, the VA examiner's summary of the Veteran's medical history appears to be inaccurate, primarily because the record does not show that there was a diagnosis of right knee DJD during the Veteran's second period of active service from 2003 to 2004. Thus, on remand, these discrepancies should be clarified. Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder, to include a copy of this remand, to the examiner who conducted the February 2012 DBQ VA examination for a supplemental opinion. (Although a different VA examiner rendered the opinion in 2010, at this point, clarification need only be sought from the most recent VA examiner from 2012.) Request the examiner review the claims folder and to note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to another appropriate examiner(s) in order to render the requested medical opinions: The examiner should be asked to clarify/explain the following findings (to the extent possible) made on the VA examinations in 2004, 2010, and 2012: (1) that an x-ray report (of both knees) dated in November 2004 showed "mild atherosclerosis," but on examination the right knee was assessed as within normal limits; (2) that a right knee condition preexisted active service in 2003-2004; and (3) that right knee DJD had an onset during the period of active service, from 2003 to 2004. Thereafter, the examiner should note the onset date of any right knee disorder, and provided an opinion as to whether it is at least as likely as not (i.e., to a 50-50 or greater degree of probability) that any current right knee disorder had an onset in or is causally related to either of the Veteran's periods of active service, or to the Veteran's now (herein) service-connected left knee disorder; or whether any such a causation or relationship is unlikely (i.e., less than a 50 percent probability). The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 2. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the opportunity to respond thereto The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs