Citation Nr: 1327715 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 07-23 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for lumbar strain with degenerative disc disease (DDD) of the thoracolumbar spine, claimed as mid-to-upper back and lumbar condition. 2. Entitlement to service connection for cervical spinal stenosis, claimed as neck pain with secondary conditions. 3. Entitlement to service connection for a left shoulder disorder. 4. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from: October 1974 to January 1978, March 1981 to June 1981 (described as full-time training duty on a Form DD-214) and January 1991 to July 1991. The Veteran also served with the Alabama National Guard both before and after his periods of active duty. Such duty included periods of Active Duty for Training (ADT) and Inactive Duty Training (IDT). He retired from the National Guard/Reserve in approximately 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2006, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. In February 2011, after certification of this appeal to the Board, the Veteran submitted additional evidence, including an Internet article on chondromalacia patella of the knees. At the same time, his representative waived initial RO consideration of this additional evidence, which the Board accepts for inclusion in the record. See 38 C.F.R. § 20.800 (2012). A review of the procedural history indicates that in February 1978 the RO denied the Veteran's claim for service connection for joint pain of both knees, elbows and lower back and that the Veteran never perfected an appeal of this decision. Therefore, the February 1978 rating decision usually would be considered a final decision. See 38 U.S.C.A. § 7105(b) (2002); 38 C.F.R. §§ 20.302 , 20.1103 (2012). Following the Veteran's November 2004 claim for service connection for a bilateral knee disorder and for lumbar strain with degenerative disc disease (DDD), the RO reopened the knee claim under the provisions of 38 C.F.R. § 3.156, which governs the submission of new and material evidence with which to reopen a final decision. However, this procedural device was not utilized with the Veteran's lumbar spine claim. In view of the Veteran's different periods of active service both prior to and after the first rating decision, and in view of the new evidence submitted to VA for each claim, including new service treatment records, the Board will proceed to adjudicate all of the Veteran's claims as claims for direct service connection. See 38 C.F.R. § 3.156 (2012). In March 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claims (as reflected in a May 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. FINDINGS OF FACT 1. The Veteran failed to report for scheduled VA examination in December 2011 without good cause. His failure to cooperate with the requested VA examination served only to deprive the Board of critical, clarifying medical evidence which might have helped establish his claims. 2. As a result of the Veteran's failure to report for VA examination as directed in the Board's March 2011 remand, there is no competent medical evidence linking any current lumbar spine disorder, cervical spine disorder, left shoulder disorder, or bilateral knee disorder to his military service, including his periods of ADT and IDT in the Alabama National Guard. CONCLUSIONS OF LAW 1. Lumbar strain with DDD of the thoracolumbar spine was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a), 3.655 (2012). 2. Cervical spine stenosis was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a), 3.655 (2012). 3. A left shoulder disorder was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a), 3.655 (2012). 4. A bilateral knee disorder was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a), 3.655 (2012). [Continued on Next Page] REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the service connection issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in December 2004, April 2005, and May 2005 of VA's duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims. Although these initial letters did not comply with all dictates of Dingess, because service connection is being denied for the claimed disabilities, no disability ratings or effective dates will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Meanwhile, in furtherance of the claim, the Veteran has provided several personal lay statements and provided relevant documents addressing the issue of entitlement to service connection. Thus, he has demonstrated actual knowledge of what he needed to show to establish entitlement to the benefit sought. VA has also satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. In that regard, the Board notes that the AMC has substantially complied with its March 2011 remand directives as they pertain to the matters decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, as instructed by the Board, the AMC/RO made attempts to secure Reserve personnel records to verify the Veteran's specific dates served in ADT and IDT. Efforts have included contacting the Alabama Adjutant General's Office and the Veteran's Army Reserve unit. It appears that copies of all available personnel records were provided, including a DD Form 214 for the Veteran's period of active duty (identified as full-time training duty) from March 1981 to June 1981, a January 1980 enlistment examination for the Army National Guard, a June 1981 separation examination, and a NGB Form 22 from the Veteran's National Guard Service. On remand VA also obtained an Army National Guard Retirement Credits Records covering the time between 1980-1988, which clearly distinguishes specific periods of ADT from general periods when instances of IDT were undertaken. The AMC/RO also arranged for the Veteran to undergo VA examinations for additional medical comment concerning the etiology of his claimed disorders, and specifically in terms of the likelihood they are directly attributable to his military service; however he failed to appear for them and did not provide a justification for his failure to report, or otherwise indicate a willingness to appear for examination. Individuals for whom an examination has been scheduled are required to report for the examination. See 38 C.F.R. § 3.326(a). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause fails to report for such examination, or reexamination action in accordance with this section shall be taken. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. There is no indication that the Veteran did not receive notice of the VA examinations and neither he nor his representative has requested that the examinations be rescheduled. Indeed, the Veteran's accredited representative specifically acknowledged in the May 2013 Appellate Brief Presentation that the Veteran failed to appear at the scheduled examination, but did not offer any explanation of good cause as to why the examination was not attended. The While VA has a duty to assist the Veteran in the development of his claims, he has a duty to cooperate with VA. See Wood v. Derwinksi, 1 Vet. App. 190 (1991). Given the RO actions and the Veteran's choice not to submit to VA examinations, the Board finds that VA has no remaining duty under the VCAA with regard to a medical examination and opinion in conjunction with these claims. The appeal will be based on the evidence of record. Thus, the Board finds 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 claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks service connection for disabilities involving the lumbar spine, cervical spine, left shoulder and both knees on the basis of his military service with the Alabama Army National Guard. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Regarding the Veteran's service in the National Guard, service connection may be granted for any disability resulting from disease or injury incurred or aggravated in the line of duty while performing active duty or active duty training (ADT). Service connection may also be granted for any disability resulting from an injury in the line of duty while performing inactive duty training (IDT), or for an acute myocardial infarction, cardiac arrest or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was a result of the person's own willful misconduct. 38 U.S.C.A. § 105 (West 2002). Only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 and 1131. To establish status as a veteran based upon ADT, a claimant must establish that he is disabled due to disease or injury incurred in or aggravated in the line of duty during that ADT period. 38 U.S.C.A. §§ 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6(a); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). The fact that a claimant may have established status as a veteran for purposes of other periods of service (e.g., his periods of active duty) does not obviate the need to establish such status for purposes of the period of ADT where the claim for benefits is premised on that period of ADT. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for the Appellant to achieve veteran status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during his IDT. Mercado-Martinez supra, Paulson, supra, Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). ADT includes full-time duty performed by service members for training purposes. 38U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). IDT is generally duty (other than full-time duty) performed by service members. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Annual two-week training is an example of ADT, while weekend drills are IDT. In general to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption does not apply to ADT and IDT service, only active duty. The same is true of the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins supra. A veteran is 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 such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 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. This includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 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 to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). I. Lumbar Strain with DDD and Cervical Spine Stenosis The Veteran seeks service connection for low back and neck disabilities that he asserts are directly related to injuries sustained during service. Because both claims involve similar issues and evidence, and as similar legal principles apply, the Board will address them in a common discussion. Concerning his claim for service connection for lumbar strain with DDD of the thoracolumbar spine, he contends in his written submissions and hearing testimony that he first injured his back during his second period of active duty in 1991. He later sustained an injury to his middle and upper back in November 1999 while in the Reserves as a result of a motor vehicle accident and reinjured his lower back in October 2001 while attempting to lift and unload a toolbox onto a truck so that his unit could clear the training station. With respect to his claim for service connection for cervical spine stenosis, the Veteran contends that he sustained a neck injury in the November 1999 bus accident during his Reserve service. Turning to the evidence of record, service treatment records for the Veteran's periods of active duty from October 1974 to January 1978 and from March 1981 to June 1981 show the Veteran made no specific back or neck complaints and none are documented. However treatment records from his second period of active duty in March 1991, show the Veteran complained of pain in his right upper lumbar and lower thoracic paraspinal region hours after picking up a patient. The clinical assessment was acute paraspinal strain. A physical therapy consultation was recommended, but a May 1991 record indicated that the Veteran did not come in for his appointment. There are no records of additional follow-up evaluation or clinical findings to suggest that this injury resulted in a chronic back disorder or that provide a basis for such a diagnosis. No discharge examination for release from active duty in July 1991 is found in the claims file. There are no references to neck complaints, findings, or diagnoses during this period of active service. Post service records include private medical records dated in March 1995 which show the Veteran received several lumbar epidural steroid injections for back pain that radiated to his left hip and leg. In correspondence dated in July 1995, a private physician associated with Carraway Oxmoor Clinic in Birmingham stated that the Veteran should be restricted from situps, lifting more than 10 pounds, running, jumping, bending and stooping because he suffered from a disc bulge. The Board notes that there is no indication in the record whether the Veteran was on ADT or IDT status at the time this disc bulge was noted. In November 1999, during a period of IDT, the Veteran was riding a military bus to a firing range at Camp Shelby with his unit to perform annual weapons qualification activities when the military bus backed into the grill of a humvee at approximately three to five miles per hour. According to a line of duty investigation, the Veteran was thrown back then forward from his position on a bus seat. It was noted that his bus seat did not have a safety belt and that the Veteran, who was part of the 5th Medical Group, assisted others after the accident. The Veteran complained of back pain after the accident. See DA Form 2173, Statement of Medical Examination and Duty Status dated November 7, 1999. The accompanying medical records show the Veteran was seen at Forrest General Hospital for X-rays of the cervical and lumbar spine which were apparently normal. He was prescribed medication, told to take off work the next day, and to return as needed. In July 2001, while in the line of duty for the National Guard, the Veteran was seen for left back strain and a pulled groin muscle as the result of an injury. See DA Form 2173, Statement of Medical Examination and Duty Status and Individual Sick Slip, both dated July 23, 2001. An accompanying medical record noted that the Veteran had been lifting a patient and suffered no direct trauma to the lower back. He was prescribed medication and physical therapy and told not to do any heavy lifting over 25 pounds. There is no indication as to whether the Veteran was on ADT or IDT status. In October 2001, during a period of IDT for the National Guard at Camp Shelby, the Veteran was seen for a lumbar strain or sprain at the American Family Care Medical Center after he felt a pull and experienced pain in his left lower back when he lifted a tool box to load on a truck. See DA Form 2173, Statement of Medical Examination and Duty Status dated October 14, 2001. Private medical records at that time indicated that the Veteran's lumbar strain radiated to the lower left leg which experienced some numbness. It also was noted that he told the examiner that he had had a biopsy nodule on his back a few years before that was benign. The examining physician recommended alternate duty if possible. A December 2001 note from a private physician indicates that the Veteran was diagnosed with a lumbar strain causing bilateral leg weakness, numbness and pain and that the Veteran should be given light duty for one month. MRI scans of both the thoracic and the lumbar spine were negative for any significant abnormalities. However a private MRI scan of the cervical spine showed mild narrowing of the central canal at C3-4, C4-5, and C5-6 from extensive degenerative osteophytes and minimal bulges with no disc herniation seen. See radiology report from Baptist Health System dated December 21, 2001. A March 2002 report by the Veteran's civilian employer at a VA Medical Center noted that because of an on-the-job injury resulting in lumbar strain, which affected his ability to stand all day. The Veteran's employment duties were switched from that of a nursing assistant to a sitting job as a medical support assistant. An April 2002 private medical record from the occupational unit of St. Vincent's Hospital noted that the Veteran had been treated since March 2002 for lumbar strain, that he was unable to continue work that required constant standing, and that this work restriction was permanent. Additional records showed that the Veteran received additional epidural steroid injections for his back pain in May and August 2002. A March 2005 private medical record noted that the Veteran was seen for degenerative disease of the cervical spine. The Veteran underwent a VA examination in May 2005. His history of neck and back injuries as a result of the 1999 motor vehicle accident as well as his current medical problems were summarized and an examination was performed. On examination, there was no noted scoliosis, kyphoscoliosis or lordosis of the spine nor any spinal or paraspinal tenderness. No muscle spasms were noted. Range of motion of both the cervical and lumbar spine was essentially normal. Neurologic examination was normal except for decreased pinprick sensation perirectally and in the dermatomal regions of C4 and C5. X-ray studies of the lumbar spine were normal. The clinical impression was mild to moderate degenerative joint disease of the mid upper back (thoracic), moderate degenerative joint disease of the lumbar spine, and moderate degenerative joint disease of the cervical spine with multilevel osteophytes with some noted radiculopathy of the cervical spine. The Board notes that there was no opinion provided addressing the etiology or likely time of onset of these diagnosed conditions. Subsequent VA medical records show ongoing evaluation and treatment of the Veteran for continued complaints of back and neck pain and muscle spasms. A June 2005 MRI scan showed mild disc bulges at L3-4, L4-5, and L5-S1 with no herniation or stenosis and moderate to severe central canal stenosis at multiple levels extending from C3-4 to C6-7. A VA physician noted neuropathic symptoms and suggested that the Veteran might have fibromyalgia. The Veteran was later referred to physical therapy. When examined by VA in July 2005, the Veteran reiterated his account of neck injury as a result of a whiplash accident while serving with the National Guard. He reported that he has had neck pain since that accident. He complained that he could not sit or stand more than two hours without developing neck pain. On this occasion he also reported that he thought he injured his upper and lower back by lifting patients when he used to work as a surgical scrub technician in the National Guard. He said that physical therapy helped his back pain which flared up daily. It was noted that he used a back brace for support and did back exercises. A MRI scan showed mild disc disease at the L3-L4, L4-L5, and L5-S1 levels and moderate to severe multilevel stenosis of the cervical spine. Following examination of the Veteran, the clinical impression was mild lumbar strain, mild lumbar disc disease, moderately severe cervical spine stenosis, and chronic neck strain. The VA examiner opined that it was not at least as likely as not that the minor trauma from a motor vehicle accident caused the Veteran's multilevel spinal stenosis. She noted that trauma is usually localized and that the Veteran's spinal stenosis implied changes due to aging, which could not be localized. She also opined that in her review of the claims file there was no documentation of any injury significant enough to have caused lumbar disc disease. Rather the mild lumbar disc disease was multilevel and thus was more likely than not a process of aging. The examiner did not otherwise address whether the Veteran's diagnosed lumbar and cervical spine disorders were aggravated during any period of active service, ADT or IDT. In a separate VA neurological examination, also conducted in July 2005, the VA examiner found that the pain and numbness in the Veteran's arms did not follow any specific cervical spine distribution and that no muscle atrophy was seen in his arms. However the Veteran's complaints of tension headaches could be aggravated by the Veteran's cervical spinal stenosis and the muscle spasm in his neck. In correspondence dated in May 2006, a staff physician at the VA Medical Center in Birmingham, stated that, among other conditions, he had treated the Veteran for degenerative spine and disc disease of the cervical, thoracic, lumbar regions and that he believed that the extent of the Veteran's disease was more advanced than in the typical patient of the Veteran's age and may have been exacerbated by his military training. However, this opinion, while supportive of the claim, is limited in terms of its ultimate probative value as it is fairly cursory in that the VA physician did not explain what evidence in the Veteran's treatment records supported his conclusions, and did not reference any clinical data or other evidence as rationale for the opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of a physician to provide a basis for his or her opinion affects the weight or credibility of the evidence); Bloom v. West, 12 Vet. App. 1985 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board observes that such a general statement regarding the etiology of the back and neck disorders does not have enough probative value to suggest a specific link between the currently diagnosed lumbar disc disease and cervical stenosis and the Veteran's military service. In an effort to address the inadequacies, and also resolve the conflict, in these two VA opinions, the Veteran was scheduled for additional VA examination, but did not report for the examination and has not offered any explanation for his absence or requested to reschedule. Unfortunately, his failure to cooperate with the requested VA examination served only to deprive the Board of critical, clarifying medical evidence which might have helped support his claims. So, as it stands, there is only the medical evidence already of record, consisting primarily of National Guard/Reserve records which are replete with references to back and problems, but do not otherwise indicate that the Veteran's current lumbar and cervical spine conditions are the same as the lumbar and cervical spine conditions treated during service. Indeed, with regard to a nexus between the in-service injuries and current disabilities, the weight of the competent and/or credible lay or medical evidence - for the reasons discussed above and as will be elaborated on in the conclusion section below - is against the Veteran's claims that current lumbar disc disease and cervical spine stenosis is related to any period of active duty, ADT or IDT. Absent such evidence of a nexus, service connection is not warranted for lumbar disc disease or cervical spine stenosis. II. Left Shoulder Disorder Concerning the Veteran's claim for service connection for a left shoulder disorder, he contends in his written submissions and oral testimony that he pulled or injured the shoulder in May 1987, while on Reserve duty, when he was unloading a truck or lifting something, apparently during a training exercise. According to the Veteran's signed statement of June 2005, at that time he was stationed at Fort McClellan, Alabama, and attached to the 109th Evacuation Hospital Unit. Service treatment records dated in May 1976, during the Veteran's first period of active duty, revealed that he hurt his left shoulder during a baseball game. The clinical assessment was a slight muscle spasm or strain and a possible rotator cuff tear. The remaining records are negative for any additional follow-up evaluation or clinical findings during the Veteran's remaining two years of service to suggest that this episode constituted a chronic orthopedic disease process or that provide a basis for such a diagnosis. His separation examination in August 1977 was essentially negative, and his upper extremities were evaluated as clinically normal at that time. The Board notes there is no indication that the Veteran had a need for continued or ongoing medical care due to any acute left shoulder symptoms in the immediate years after this period of service. Indeed, service treatment records for the Veteran's period of active duty from March 1981 to June 1981 show he made no specific left shoulder complaints and none are documented. Other National Guard records show the Veteran was seen at the Emergency Care and Treatment unit at Fort McClellan, Alabama, on May 16, 1987 for complaints of left shoulder pain on abduction and external rotation. X-rays of the left shoulder were negative for dislocation. The clinical impression was questionable rotator cuff tear. There were no other significant findings reported and the form did not indicate the type of duty involved. The Veteran's remaining reserve service records make no further reference to left shoulder complaints, findings or diagnosis. The next relevant medical evidence is a May 2005 VA examination report. Although at that time the examiner diagnosed degenerative joint disease of the left shoulder, this finding was not confirmed by X-ray evidence. In fact, when examined by VA in July 2005, two months later, a different examiner diagnosed mild chronic left shoulder strain and opined that it was as likely as not that some of the discomfort and strain in the left shoulder was related to the Veteran's cervical spinal stenosis. As noted in the March 2011 Board Remand, there is no conflict between these VA examinations since X-ray studies of the left shoulder were normal. The July 2005 diagnosis is consistent with the remainder of the medical evidence in the file and simply corrects any misdiagnosis of the left shoulder found in the May 2005 VA examination. However neither physician suggested that any left shoulder symptomatology originated during military service or otherwise specifically related it to service. As a result the Veteran was scheduled for additional VA examination, but did not report and has not offered any explanation for his absence or requested to reschedule. This examination was critical in order to establish service connection. In short, in accordance with the provisions of 38 C.F.R. § 3.655, the claim will be adjudicated based on the evidence of record. Based on the foregoing, the Board is unable to attribute the Veteran's chronic left shoulder strain to his military service. The fact that he was treated for acute left shoulder symptoms during his first period of active duty is acknowledged. However, left shoulder pain, while the type of symptom capable of lay observation, is not equivalent to a diagnosis of a chronic left shoulder disorder. While the Board acknowledges the Veteran's medical history, merely establishing treatment for symptoms while in service, is not tantamount to granting service connection because there also has to be chronic (meaning permanent) residual disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent evidence to exist). However, the Veteran's primary assertion is that he injured his left shoulder during his Reserve service in May 1987. This account of the Veteran's left shoulder injury is corroborated, at least in part, by the Emergency Care and Treatment report from Fort McClellan, Alabama, dated in May 1987, which indicated that the Veteran was treated for a left shoulder pain at that time. In its March 2011 Remand, the Board noted that records were incomplete as to the exact dates that the Veteran was on ADT or IDT during the period of his alleged left shoulder injury. As such, the Board remanded this matter to ascertain the exact dates of his service. The records obtained pursuant to the Remand clearly indicate that the Veteran's duty status on May 16, 1987 was not ADT, so it is presumed to be IDT. Significantly, Army National Guard Retirement Credits Records related to the time period of this alleged injury show that the Veteran was a member of the Army National Guard January 1987 to January 1988, with periods of ADT specified in the months of January, February, June and July in the year 1987, but not in May 1987. Rather, for the period April 1987 to January 1988, the Veteran was assigned 52 IDT points. While this clearly indicates that the Veteran served in the Army National Guard during this general period and was not assigned to ADT at any time in May 1987, it does not otherwise specifically reveal whether he was in IDT status on May 16, 1987. However, the Board takes judicial notice of the fact that May 16, 1987, was a Saturday. The Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See, e.g., Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws). So while the Board acknowledges that verification of his duty status on May 16, 1987 is unavailable, the record contains sufficient supporting evidence that the Veteran sustained a left shoulder injury while on a weekend drill during a period of IDT. Consequently the remaining issue for the Board's consideration is whether the record contains competent and/or credible lay or medical evidence of a nexus between the left shoulder injury that occurred during IDT on May 16, 1987 and the currently diagnosed left shoulder strain. And it is in this critical respect that the Veteran's claim fails. The Veteran's in-service episode of left shoulder strain in 1976 during his first period of active duty was acute and transitory, and completely resolved by the time of service discharge as evidenced by subsequently dated National Guard records. Thus it is clear that a continuing permanent left shoulder disability was not then present. Moreover the Veteran's National' Guard/Reserve records do not otherwise indicate that his current left shoulder condition is the same as the left shoulder condition treated in May 1987. Indeed, with regard to a nexus between the in-service injuries and current disabilities, the weight of the competent and/or credible lay or medical evidence - for the reasons discussed above and as will be elaborated on in the conclusion section below - is against the Veteran's claims that current left shoulder disability is related to any period of active duty, ADT or IDT. Absent such evidence of a nexus, service connection is not warranted for a left shoulder disorder. III. Bilateral Knee Disorder Concerning the Veteran's claim for service connection for a bilateral knee disorder, he contends in his written submissions and oral testimony that in service he constantly jumped out of trucks and fell to the ground as part of his training. He specifically asserts that he injured his knees while on active duty in 1975, and injured his left knee in 1983 while moving a dolly set weighing several hundred pounds during National Guard training to set up a field hospital. Service treatment records show that the Veteran was seen multiple times for complaints of bilateral knee pain during his first period of active duty. A June 1976 record noted that the Veteran stated his knee pain began two weeks before after a 12-mile road march. After a normal examination, assessment was knee strain. An August 1976 record noted a complaint of bilateral knee pain for four months with the pain greater with running and climbing stairs. The clinical assessment was moderate chondromalacia with effusion and possible prepatellar bursitis. October 1976 records noted an assessment of chrondromalacia patella and questionable chondromalacia. In November 1976 the right knee was swollen and tender and mild chondromalacia patellar was assessed. A January 1977 record noted that the Veteran's knees hurt constantly, especially with wearing boots. February and March 1977 service treatment records showed no significant abnormalities during an examination and X-ray studies within normal limits with the Veteran having no significant injury and apparently normal knees. June and July 1977 service treatment records showed no significant orthopedic disease, nothing significant on X-ray studies, and an assessment of bilateral knee pain. Despite the these numerous complaints, no knee abnormality was noted on the Veteran's August 1977 discharge examination. The Board notes that on his contemporary report of medical history the Veteran wrote that he had been having constant and severe knee pain in both knees almost every day for two years, that he could hardly walk at times, and that his pain worsened if he wore boots. However, the examiner indicated that no significant orthopedic disease was found after evaluation by two separate hospitals. Before actual discharge in January 1978, the Veteran was seen several more times for complaints of bilateral knee pain during that first period of active duty. An August 1977 record showed a normal knee examination and a September 1977 record showed an assessment of chondromalacia. October 1977 records showed continued treatment and assessments of bilateral knee pain and chronic chondromalacia. Service treatment records also include numerous physical profile records which show that, between October 1976 and November 1977, the Veteran was given limited duty on several occasions for his knee condition. There is no indication that the Veteran had a need for continued or ongoing medical care due to any acute knee symptoms in the immediate years after service. The Board also finds it particularly significant that a January 1980 examination for enlistment in the Army Reserve found the Veteran's lower extremities were normal and there was no report of knee pain. A May 8, 1983 National Guard treatment record noted an injury to the left knee while the Veteran was moving a dolly. No swelling was noted though some pain was noted on movement and touch. The Veteran was treated with an Ace bandage and Tylenol and returned to duty. As will be explained in more detail later, the Board finds in reasonable that this was during IDT. The next relevant medical evidence is a May 2005 VA examination report, but no diagnosis for the bilateral knees was given. Two months later, the Veteran underwent another VA examination in July 2005. At that time he indicated that that he had been told by a doctor that he had problems with his patella tendon and to wear support on his knees. He denied any knee surgery, but did wear elastic supports over his kneecaps and used a cane. The diagnosis was mild chronic strain in both knees treated with patella support. The examiner did not suggest that any bilateral knee symptomatology originated during military service or otherwise specifically relate it to service. The remaining records include an August 2005 VA physical therapy record, which noted the Veteran fell recently after a knee "gave away" on him. A November 2005 MRI scan of the left knee showed mild degenerative cartilage changes of the posterior patella, degenerative signal intensity in the lateral meniscus, and fluid interposed between intact bands of the anterior cruciate ligament (ACL) perhaps reflecting a chronic partial tear. A December 2005 MRI scan of the right knee showed mild osteoarthrosis change. The Veteran was scheduled for additional VA examination, but did not report and has not offered any explanation for his absence or requested to reschedule. This examination was critical in order to establish service connection. In short, in accordance with the provisions of 38 C.F.R. § 3.655, the claim will be adjudicated based on the evidence of record. Based on the foregoing, the Board is unable to attribute the Veteran's current bilateral knee disorders to his military service. There is no disputing the in-service treatment records and multiple physical profile reports that indicate that the Veteran was experiencing chronic bilateral knee pain during service. However, knee pain, while the type of symptom capable of lay observation, is not equivalent to a diagnosis of chronic knee disorders. While the Board acknowledges the Veteran's medical history, merely establishing treatment for symptoms while in service, is not tantamount to granting service connection because there also has to be chronic (meaning permanent) residual disability resulting from that condition or injury. Chelte, supra. Moreover these knee problems seem to have been acute and transitory, and apparently resolved by the time of the Veteran's enlistment in the National Guard in 1980. Thus there was no evidence of a continuing permanent bilateral knee disability. The Veteran also contends that he injured his left knee again in May 1983 while on Reserve duty during a training exercise. This account of the Veteran's left knee injury is corroborated, at least in part, by the service record, dated May 8, 1983, which documents the Veteran's treatment for left knee pain at that time. In its March 2011 Remand, the Board noted that records were incomplete as to the exact dates that the Veteran was on ADT or IDT during the period of his alleged left knee injury. As such, the Board remanded this matter to ascertain the exact dates of his service. The Army National Guard Retirement Credits Records obtained on remand specify ADT duty in the year 1983 only from June 11-25. However, the Veteran had a total of 63 IDT points from January 1983 to January 1984. Again, the Board takes judicial notice of the fact that May 8, 1983, was a Sunday. The Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. Yeoman supra; Dedicatoria supra. As such, the Board will assume that the Veteran was performing IDT at the time of his left knee injury. So while the Board acknowledges that thus verification of his duty status on May 8, 1983 is unavailable, the record contains sufficient supporting evidence that the Veteran likely sustained a left knee injury while on a weekend drill during a period of IDT. Consequently the remaining issue for the Board's consideration is whether the record contains competent medical evidence of a nexus between the left knee injury that occurred during IDT on May 8, 1983 and the currently diagnosed bilateral knee disorders. And it is in this critical respect that the Veteran's claim fails. In this case, the Veteran's Reserve records do not otherwise indicate that his current left knee condition is the same as the left knee condition treated in May 1987. Indeed, with regard to a nexus between the in-service injuries and current disabilities, the weight of the competent and/or credible lay or medical evidence - for the reasons discussed above and as will be elaborated on in the conclusion section below - is against the Veteran's claims that current left shoulder disability is related to any period of active duty, ADT or IDT. Absent such evidence of a nexus, service connection is not warranted for a bilateral knee disorder. IV. Conclusion The Board notes that despite the lack of definitive medical nexus opinions in this case, medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The United States Court of Appeals for the Federal Circuit also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In this case the Veteran has been highly consistent in his recollection of his various injuries throughout the claim process, to include testimony before a DRO. Moreover, his accounts of these injuries are corroborated, at least in part, by either determinations signifying that he sustained back and neck injuries in the line of duty during a period of IDT or service treatment records referencing left shoulder and knee injuries during periods of IDT. Thus, based on the evidence submitted in support of his claims, the Board finds the Veteran to be credible with respect to his assertions of in-service injuries. The Board is also cognizant that the Veteran received training for and served in various medical-related capacities such as "medical specialist" or "medical assistant" during his military service. However, there is no evidence suggesting that the Veteran has an advanced degree in medicine, such as a physician or nurse. Thus, while it remains unclear whether the Veteran's medical background equates to possessing the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation, it is acknowledged that the Veteran likely possessed more knowledge of medicine than the average lay person. As such, the Board will afford the Veteran all reasonable doubt as assume that he is competent too opine that any current disabilities are related to the injuries sustained in service. But to the extent the Veteran has some medical training and knowledge, his assertions regarding diagnosis or medical causation are of questionable probative value. While the Veteran may truly believe that his current maladies affecting his shoulder, knees, and spine are related to injuries sustained during military service, the Board must consider his assertions in light of the potential bias the Veteran has in connection with the claims for the very benefits he seeks. The Board points out that in weighing the credibility, VA may consider various factors, including interest, bias, facial plausibility, self interest, consistency with other evidence of record, such as desire for monetary gain and demeanor of the appellant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board thus finds the Veteran's contentions as to the etiology of his claimed disabilities are of limited probative value under the circumstances. The medical issues in this case are fairly complex because they deal with degenerative disc disease and degenerative joint disease, disorders that require specialized training and equipment for a determination as to diagnosis and causation. While the Board acknowledges the Veteran's competency as to the symptoms experienced and their possible etiological relationship to injuries sustained during military service, under the circumstances of this case the Veteran assertions that ascribe these symptoms to disabilities related to injuries sustained in military service lack probative value. As was noted in the discussion throughout the decision, VA attempted to get a more complete and authoritative medical opinion, but the Veteran did not appear for the scheduled examination. In conclusion, the preponderance of the evidence weighs against the claims that the acute and transitory back, neck, left shoulder or knee injuries that occurred during any claimed period of active duty, ADT, or IDT, are related to any of the Veteran's currently diagnosed disabilities. As the preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for lumbar strain with DDD of the thoracolumbar spine, claimed as mid-to-upper back and lumbar condition is denied. Service connection for cervical spinal stenosis, claimed as neck pain with secondary conditions is denied. Service connection for a left shoulder disorder is denied. Service connection for a bilateral knee disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs