Citation Nr: 1338325 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 02-03 464A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a cervical spine disability, to include as secondary to bilateral knee disability. 4. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, to include as secondary to bilateral knee disability. 5. Entitlement to a total disability evaluation for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2000 (knees and cervical spine) and November 2002 (psychiatric and TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The Board notes that, pursuant to his request in his multiple substantive appeals, the Veteran was scheduled for a Travel Board hearing at the RO in October 2009. However, the Veteran subsequently cancelled his hearing request. While he questioned whether the hearing could be rescheduled at a local medical facility (which is not possible), it is clear that he otherwise wished to withdraw the request. As such, the Veteran's hearing request is deemed withdrawn and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e). The RO originally denied service connection for a left knee disability and service connection for a right knee disability in March 1979. In a decision dated in May 2011, the Board re-opened the claims for service connection for the knee disabilities. It then remanded the claims for service connection for the knees, the claim for service connection for a cervical spine disability, the claim for service connection for an acquired psychiatric disorder, and the claim for total disability based upon unemployability for compensation purposes in May 2011 and February 2013. As the requested development has been completed as to the cervical spine disability, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, as to the other claims before the Board, the case must be remanded again. Following the issuance of the supplemental statement of the case in July 2013, the Veteran submitted additional evidence in support of his claims and, through his service representative, waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). The issues of service connection for a left knee disability, service connection for a right knee disability, service connection for total disability based upon individual unemployability for compensation purposes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative evidence of record does not demonstrate that a cervical spine disability, diagnosed as degenerative joint disease with right forminal stenosis at C6-C7, had onset during service, was manifested to a compensable degree within one year after separation from service, or is otherwise related to an injury, disease, or event in service. CONCLUSION OF LAW A cervical spine disability, diagnosed as degenerative joint disease with right forminal stenosis at C6-C7, was not incurred in or aggravated by active service; and degenerative joint disease of the cervical spine may not be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, including dated in September 2000, March 2001, September 2001, October 2003, February 2004, August 2006 and January 2008. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for consideration in the assignment of an effective date and disability rating, in the event of award of the benefit sought. As for content of the VCAA notice, the documents complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statements of the case issued thereafter. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Although VCAA notice was not provided as to the information and evidence necessary to establish secondary service connection, the Board finds that the Veteran has not been prejudiced in this regard. Rather, the record reflects that the Veteran had actual notice of the criteria for secondary service connection as such was contained in the "Pertinent Laws" section of a supplemental statement of the cases issued to the Veteran in April 2002. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, private medical records, records from the Social Security Administration, and obtained VA examinations in January 2006, July 2010, June 2011, and June 2013. The reports of the VA examinations included a review of the Veteran's medical history, including his VA treatment records and service records. Further, the examination reports, particularly the July 2010 and the June 2013 VA examinations, provided opinions with a basis or rationale for the opinions. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Generally, to establish service connection on a direct incurrence basis, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to the chronic diseases that are listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Degenerative joint disease, listed as osteoarthritis, is listed as a disease under § 3.309 as a chronic disease. The showing of a chronic disease, such as osteoarthritis, in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain disabilities, such as osteoarthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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 addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). Evidentiary standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records show upon entrance in 1959, the physical examination revealed no abnormalities of the cervical spine and the Veteran did not report any history of cervical spine problems. Starting in February 1960, the Veteran sought treatment for knee symptoms and was subsequently diagnosed with a torn medial meniscus of the left knee. The history obtained at that time included a prior injury to the left knee playing football two years earlier. A medical board determined that the Veteran was unfit for performance of his duties and he was discharged. The service medical records only document symptoms and findings concerning the left knee. The service records do not contain any complaint, symptom, finding, diagnosis, or treatment regarding the cervical spine. In November 1971, the Veteran complained of feeling something pop in his neck. It was noted that his job as a driver required the veteran to reach back and pull a lever with his left arm and that action caused his problem. The diagnosis was acute myositis of the left neck muscles. In January 1977, it was noted he had discomfort in the back when he flexed his neck. The diagnosis was a muscle strain, myositis, myofasciitis. In December 1986, the Veteran sought treatment complaining of lower cervical and upper thoracic pain for the past week. It felt like a grating sensation when he turned his head. There were no symptoms in the upper extremities and he had good range of motion. The x-rays did not show any sign of degenerative disease and the impression was mild arthritis versus fibromyositis. In June 1995, the Veteran was diagnosed and treated for bilateral cervical spasm. In June 2000, the Veteran complained of left neck pain with popping in the neck and some numbness in the left arm. Range of motion was decreased slightly to the left and CT scan revealed cervical spine degenerative joint disease with right forminal stenosis at C6-C7. In September 2001, the Veteran was evaluated at VA for complaints of left arm numbness and it was noted he had osteoarthritis of the cervical spine. The left arm numbness was on the ulnar side extending down to the ulnar fingers. X-rays had also shown diffuse arthritis of the left elbow. At that time, the diagnosis was ulnar nerve compression/cubital tunnel syndrome of the left arm. A subsequent NCS/EMG confirmed severe left ulnar entrapment across the left elbow and mild to moderate bilateral carpal tunnel syndrome. In December 2002, a CT scan demonstrated minimal stenosis of the right neural formina at C6-C7 and degenerative bone change around the facet joints at the level of C7-T1. In April 2003, the Veteran was in an auto accident that caused injury to his neck, lower right side, and lower back. That same month, private X-ray demonstrated chronic degenerative disc disease at C6-C7. In September 2003, during physical therapy, the Veteran complained of significant left side neck pain. He had been experiencing neck pain off and on for about a year but the pain was getting worse. In August 2004, a NCS/EMG again confirmed left ulnar compression across the elbow but also demonstrated bilateral chronic C5-C6 radiculopathy which may be secondary to neural forminal stenosis in addition to the Veteran's history of spinal stenosis. In a statement received by VA in December 2004, the Veteran stated his neck pain was constant. In October 2005, the Veteran reported pain in his neck and numbness and tingling in his hands and fingers, the right worse than the left. The diagnosis was cervical spinal myelopathy with a past history of right foraminal stenosis at C6-C7 by degenerative spurring of the uncinate process. The Veteran was provided a VA examination in January 2006. The Veteran reported that he began having neck pain in approximately 2001 with a gradual onset of pain. There is no history of a specific trauma to the neck. On a daily basis, he experienced stiffness and aching pain at the base of his neck radiating to his left shoulder. The pain in the left shoulder was described as a burning pain. The pain was 5/10. He had not had any incapacitating episodes in the prior year. He takes prescription medication with moderate relief. Upon physical examination, the Veteran was noted to have a normal curvature and symmetry of the cervical spine. He had forward flexion to 45 degrees, to 40 degrees without pain. Extension was to 45 degrees, to 40 degrees without pain. Left lateral flexion was to 45 degrees, to 35 degrees without pain. Right lateral flexion was to 45 degrees, to 40 degrees without pain. The Veteran had left lateral rotation to 80 degrees, to 65 degrees without pain and right lateral rotation to 80 degrees, to 55 degrees without pain. No additional limitations were noted with repetition as related to pain, fatigue, incoordination, weakness, or tenderness. There was trigger point tenderness in the left trapezius, paracervical, and rhomboideus areas. The Veteran's sensation, motor examination, and reflexes were all intact. The examiner noted a June 2004 CT scan showing osteoarthritic changes in the facet joints at multi-cervical levels with marginal spurring seen at all disc margins except C2-C3. The left neural foramen at C2-C3, however, is narrowed by marginal spurs and both neural foramen are narrowed at the C6-C7 level. No central stenosis or disk herniation is seen at any level. The examiner diagnosed degenerative joint disease with degenerative disc disease of the cervical spine, less likely than not related to the Veteran's left knee disability. The examiner did not offer any reasoning or basis for his conclusion. In April 2006, the Veteran reported continuous 7/10 pain at the base of the neck radiating into the left shoulder and hand. The Veteran also continued to deal with ongoing numbness and tingling in the right hand and little finger in the evening. He was independent in his activities of daily living. In April 2008, the Veteran had a diagnosis of cervical spondylosis. An MRI in March 2008 noted small focal central osteophyte at C4-C5, which is minimally indenting on the cervical cord. At both C5-C6 and C6-C7, a broad based disc protrusion mildly indented on the cord. In February 2009, the Veteran gave a history of neck pain since he left service. He stated that he was bedridden after damaging both of his meniscuses on a ship. Since that time, he has always had a slight neck pain but starting in 2004, the pain became more severe and constant. The neck pain will awaken him in the middle of the night. He also reported trouble with his hands. Moving his neck causes radiating pain. The diagnosis was chronic episodic cervicalgia and chronic myofascial pain. In a VA examination in July 2010, the Veteran described a gradual onset of pain over the nape of the neck which is increased by turning his head to the left. When he does that, the pain increases on the left side of the neck. He described the pain as a constant mild ache but sharp, brief pain in the left nape of the neck upon turning his head to the left. The examiner noted the Veteran had poly arthritis but especially in the knees, hips, and low back. He also has a brief decrease in range of motion during the sharp pain upon turning his head to the left. He denied any cervical injury in service. The Veteran is retired and the cervical spine symptoms have no effect on his activities of daily living. It does impair driving to the extent he has to drive backwards. He has to turn his body and use his mirrors. He had forward flexion to 45 degrees. Extension was to 40 degrees. Lateral flexion bilaterally was to 20 degrees, and lateral flexion bilaterally was to 45 degrees. The examiner noted facial flinching upon turning the head to the left. Repetition did not result in a decrease of range of motion or function. There was no spasm or weakness, but tenderness was noted over the left base of the nape of the neck to finger pressure. The examiner also noted mild cervico thoracic kyphosis and decreased musculature. The Veteran also had a slumped posture. Upon neurological examination, the Veteran had tingling and decreased sensation at the tips of the fingers of both hands but the Veteran also had a history of bilateral carpal tunnel syndrome. The motor examination and reflexes were normal. The diagnosis was degenerative joint disease with degenerative disc disease of the cervical spine and mild bilateral neural foramina at C6-C7. The examiner concluded that the Veteran's cervical spine disability was not caused by or aggravated by military service. It was noted there were no injuries to that area during service or afterward. The examiner stated that the Veteran, now 70, is expected to have degenerative disc disease and degenerative joint disease of the spine. In June 2011, the Veteran underwent a VA examination and reported the cervical spine condition started with a fall in the military but was hospitalized and treated predominately for the left knee condition, although he had some pain in his neck at that time. He was not treated at that time or after separation in 1960 for the neck pain. At the time of the examination, he had mild pain in the paracervical area without distribution. There have not been any incapacitating episodes. It was noted the Veteran ambulated with a walker and was limited to short distances. He had unsteadiness but there have not been any falls. The Veteran is retired and the cervical spine symptoms have no effect on his activities of daily living. Upon examination, the spine was symmetrical but posture was slightly kyphotic. He had forward flexion to 40 degrees. Extension was to 40 degrees. Lateral flexion bilaterally was to 30 degrees, and rotational flexion bilaterally was to 55 degrees. There was end range pain in all directions. Repetition did not result in a decrease of range of motion or function. The examiner noted objective evidence of pain, tenderness mostly in the paracervical area, and some guarding. There was no atrophy. The Veteran's sensory examination, motor strength, and reflexes were normal. The examiner concluded that as the Veteran did not receive any treatment in service or since his separation, it was less likely the cervical spine condition was related to any incident in service. In June 2013, the Veteran underwent a VA examination. He stated chronic neck pain began in 2010 with a gradual onset progressing over the years. He denies any neck trauma or injury but believes his bilateral knee disabilities altered his gate resulting in his neck symptoms. Currently, he has a constant dull ache of the posterior neck with increased pain with rotation of the neck and prolonged positioning for more than 30-45 minutes. He also had increased pain with driving and lifting. Medication provided minimal relief. He had forward flexion to 45 degrees with pain at 45 degrees. Extension was to 30 degrees with pain at 30 degrees. Lateral flexion bilaterally was to 45 degrees, and rotational flexion bilaterally was to 65 degree all with pain at the end. There was end range pain in all directions. Repetition did not result in a decrease of range of motion or limitation. Functional loss was described as less movement than normal, pain upon movement, and interference with sitting, standing, and/or weight bearing. There was tenderness but no spasm or guarding. Muscle strength, sensation, and reflexes were normal. There was no evidence of radicular pain. The examiner concluded that the cervical spine disability was less likely than not caused or aggravated by the veteran's knee disabilities. The examiner agreed the Veteran had a well-documented history and diagnosis of osteoarthritis and degenerative disc disease of the cervical spine. It was opined that there was no indication of a gait disturbance to a degree that would result in any type of adversity of the neck, thoracic, or lumbar-sacral spine. In addition, the examiner stated that the knees and the cervical spine were anatomically and physiologically unrelated. Therefore, the examiner concluded it is less likely than not that the bilateral knee disability is the cause of, or an aggravating factor of the cervical spine disability. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board has remanded below the issues of service connection for disability of the right and left knees, and the Veteran argues those disabilities caused or aggravated his cervical spine degenerative joint disease. Based upon the foregoing facts, as analyzed below, there is no nexus between the knee disabilities and the Veteran's cervical spine disability. Therefore, the Board finds that the issue of service connection for a cervical spine disability is not inextricably intertwined with the issues of entitlement to service connection for a right knee disorder, and a left knee disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The Board will therefore proceed to the merits in the issue of service connection for a cervical spine disability. As noted, as a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (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.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his cervical spine symptoms and events regarding his cervical spine in service and thereafter. Although the Veteran is competent to describe symptoms, unless the diagnosis is capable of lay observation, the determination as to the presence or diagnosis of such a disability is medical in nature and competent medical evidence is required to substantiate the claim. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Veteran is not asserting the presence of any cervical spine disability since service that is capable of lay observation. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition). A diagnosis involving the spine or joints cannot be made by the Veteran as a lay person based on visual observation or by any other of the senses. As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, such as radiological studies, which requires medical knowledge. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis or to offer an opinion on the questions of etiology. Therefore, the Veteran's assertion or opinion that he has degenerative joint disease of the cervical spine and its relationship to service, or to a knee disability, is not competent evidence. To this extent his statements and testimony are not admissible as evidence of the diagnosis and causation of a disability. It is the opinion of a layman and not competent medical evidence of a diagnosis by a medical professional. The Veteran's discussion of his symptoms certainly is important, however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional. To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of his symptoms. Such lay evidence is relevant and competent. To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, or the relationship of any given disability to service or to another disability, the Board has disregarded the Veteran's opinions in its analysis. While the Veteran's report of symptoms he experienced are relevant, competent, and credible, this evidence does not establish the nexus to service by itself, but rather, are facts that someone with medical knowledge can consider as to the relationship between any spine or joint disability and service. The Board also notes that the Veteran has asserted at times, such as in February 2009 and the June 2011 VA examination, that his cervical spine symptoms began in service at the time he also injured his knees. The Board finds that the Veteran is not credible as to this assertion. First, the first complaint involving the cervical spine area was not until 1971 when the veteran was diagnosed for acute myositis of the left neck muscles, and degenerative joint disease of the cervical spine was not diagnosed until June 2000. Although the veteran's assertion does not have to be corroborated by contemporaneous medical evidence, see Barr v. Nicholson, 21 Vet. App. 303 (2007), the Board may weigh the absence of contemporaneous medical evidence against the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, the lengthy period of absence of medical complaints or treatment for many years weighs against the Veteran's credibility. Maxson v. Gober, 230 F. 3d 1330, 1335 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Finally, the Board also notes that in many statements in support of his claim and in prior outpatient notes that he submitted before February 2009, he asserts that the cervical spine disability started years later and resulted from altering his gait due to the knee disabilities. Therefore, the statements that the cervical spine disability began in service are inconsistent with the totality of the evidence of record and the Board finds them not credible. The Board finds that the only competent and credible medical evidence before the Board, as to the claim of service connection for the cervical spine disability are the records of medical providers and examinations and reports of the VA examiners. All are qualified by education, training, or experience to diagnose a medical condition and to offer an opinion on causation. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -03 (2008). The Board finds that the opinions of the July 2010 and June 2013 VA examiners are more probative as to the claim of service connection for a cervical spine disability. The Board finds the unfavorable medical opinions of the July 2010 and the June 2013 VA examiners are well reasoned, detailed, and provide rationales that are consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms. The examiner in July 2010 noted there was no evidence of any injury, trauma, or symptoms of a cervical spine disability until many years after service. The July 2010 examiner thus concluded it was less likely than not that the cervical spine disability, degenerative joint disease, is a direct result of service. The June 2013 VA examiner noted that the cervical spine area is not connected to the knees in such a manner that an altered gait by the Veteran could result in his disability. Further, there was no basis to link the knee disability to any part of the spine. Therefore, the knee disabilities, irrespective of whether they resulted from service, played no role in the onset and development of the degenerative joint disease of the cervical spine. The VA examiners set forth an accurate history with medical details taken from the Veteran's claims file, which renders it especially probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). As the VA examiners applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinion, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, i.e., whether the cervical spine disability is related to service or another disability. The VA examiners have provided the most probative evidence and the Board assigns it the most weight as the examiners' reports specifically addresses the question of a diagnosis and its relationship to service. In sum, the Board finds that the opinions of the July 2010 and June 2013 VA examiners provide the most persuasive evidence of record and these weigh against the Veteran's claim. Accordingly, the weight of the medical evidence is against an association or link between any cervical spine disability and service or other disability. The preponderance of the probative evidence is against the claim of service connection on the applicable theories of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a cervical spine disability, diagnosed as degenerative joint disease with right forminal stenosis at C6-C7, is denied. REMAND As noted, in May 2011, the Board reopened the Veteran's claims for service connection for the knees and remanded these two issues to address the etiology for the knee disabilities. The Board also remanded the claim for service connection for an acquired psychiatric disorder also for an etiology opinion. The Board remanded a second time in February 2013 as the VA examinations during the first remand were inadequate. Unfortunately, and with apologies to the Veteran, the examinations in June 2013 do not provide adequate discussion of the medical evidence and opinions for the Board to make a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the RO must provide the Veteran with new VA examinations addressing the etiology of his bilateral knee disability and acquired psychiatric disability. As to service connection for disability of the knees, the VA examiner in June 2013 has provided a confusing report regarding his opinions. At one point, the examiner concluded it was less likely than not that the Veteran's bilateral knee disability was due to an injury, disease, or event in service, but due to an injury that pre-existed service. Later, in the same report, the examiner states that there is clear and unmistakable evidence that the left knee disability had not worsened beyond its natural progression in service again referring to an injury before service. The examiner does not discuss the origin of the right knee injury at all. In addition, although acknowledging that the Veteran has had progressive symptoms over the years, the VA examiner seems to suggest that the Veteran's current disability resulted after a fall in 1978, and did not discuss the evidence of both right and left knee symptomatology in the 1960s as well as the Veteran's competent lay statements that he had knee symptoms in service and from separation to the 1970s. Finally, the examiner made an improper factual determination to support his opinions. The record reflects that upon entrance in 1959, the physical examination revealed no abnormalities of either knee. There is a conflicting history report from the Veteran. In one version of the history report, he states he has had no problems with his knee, but in the second version, he reported a problem with a trick or locking knee. There is no commentary or further explanation by the examiner. The Veteran also asserts his knees were X-rayed upon entrance although the Board finds no evidence of knee x-rays at that time. Starting in February 1960, the Veteran sought treatment for knee symptoms and was subsequently diagnosed with a torn medial meniscus of the left knee. It was during that work-up X-rays were taken and interpreted as negative. The history obtained at that time included a prior injury to the left knee playing football two years earlier. A medical board determined that the Veteran was unfit for performance of his duties and he was discharged. The medical board also determined the injury existed prior to service. The Veteran, in numerous statements strongly disputes what happened while he was in the United States Navy. He states he never played high school football and dropped out of high school when he was 16. He then worked in a gin mill and later a food market until he entered the Navy. He also states after he finished basic training without any problems, he was assigned to a ship where he slipped and injured both knees. He attributes that injury as to the cause of the disability in each knee. If the disability is not noted upon entering service, then the presumption of soundness applies, 38 U.S.C.A. § 1111, and the burden is on the VA to show by clear and unmistakable evidence that not only did the disability pre-exist service but that it was not aggravated by service to rebut the presumption. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a preexisting disorder is noted upon entry into service, the Veteran may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153, 38 C.F.R. § 3.306. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).) VA's General Counsel has held that to rebut the presumption of sound condition, 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. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). 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. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). In the Veteran's situation, the Board has determined that there is no clear and unmistakable evidence that the left knee injury existed prior to service. At best, there is a conflict in the history portion of the examination and there was no finding on the physical examination itself. The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). As there is no clear and unmistakable evidence of a left knee injury pre-existing service, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for service connection, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The VA examiner in June 2013, however, has made a credibility finding and attributes the onset of the Veteran's knee condition to the football injury and not the Veteran's statements that the injury occurred during service. As noted, however, there is conflicting evidence whether the onset began in service or whether it resulted from an injury before service. It is the Board's function to determine this fact. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans' cases is to be done by the Board").) As noted, under the regulations, there must be clear and unmistakable evidence that the Veteran's left knee injury preexisted service as it was not noted upon the entrance examination. Therefore, the examiner's opinion is also inadequate as VA has not meet its burden of proof that the meniscus injury pre-existed service and the examiner cannot rely upon the recorded history of the Veteran receiving a football injury before service. The VA examiner discussed the knee disability claims as one disability instead of discussing each knee separately. The medical evidence demonstrates that, as the evidence for each knee differs, and a different legal theory may apply to each knee. A new examination is required to determine whether the Veteran's current left knee disability is due to the medial meniscus tear diagnosed in service in February and March 1960. In a similar manner, as to the right knee, the Veteran now asserts that knee was hurt in the same incident that resulted in his left knee injury. There is no documentation in service for that injury. Therefore, the examiner should also offer a separate opinion as to whether the Veteran's right knee disability is related to service or whether it was secondarily caused by the left knee disability. As to the acquired psychiatric disorder, it is the Veterans contention that he has developed a mental health disability caused or aggravated by his disabilities involving the knees or neck. The VA examiner in May 2013 determined that the Veteran had a depressive disorder not otherwise specified. The examiner concluded that it was less likely than not any military stressor caused the Veteran's current disorder, but that the depressive disorder started in childhood. The examiner did not address whether service including the Veteran's early discharge aggravated the condition. In addition, as to whether the knee disabilities caused or aggravated his depressive disorder, the examiner concluded that the Veteran's depressive disorder was pre-morbid to service but "any Veteran perceived loss, disappointment, and/or life event could precipitate his depressive symptoms." Thus, the statement suggests, but it is not clear, that the Veteran's knee disabilities could have aggravated the depressive disorder. Accordingly, the Board has determined that on remand, the VA examiner should provide an addendum opinion to clarify the noted issues of aggravation. With regard to the Veteran's claim for entitlement to a TDIU, the Board finds that this issue is inextricably intertwined with the issues of entitlement to service connection for a right knee disorder, service connection for a left knee disorder, and service connection for an acquired psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Accordingly, these issues must be adjudicated together. Accordingly, the case is REMANDED for the following action: 1. Update all VAMC treatment records. 2. Provide the Veteran a VA knee examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is asked to address: a). Identify all diagnoses of the Veteran's left knee, and then, for any diagnosed disability, is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's left knee disability is related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. b). Identify all diagnoses of the Veteran's right knee, and then, for any diagnosed disability, is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's right knee disability is related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is advised he or she should assume for the sake of the examination that the no knee disability was found at the entrance examination and the Veteran was determined to be fit for service. The examiner is asked to specifically comment on the injury described by the Veteran where he made it through basic training without any pain, limitations, or problems, and then a few months later, after he slipped and fell, was diagnosed and treated for a left medial meniscus. The examiner is also asked to comment on the Veteran's post service medical history starting with private medical records dated between 1958 and 1997 showing that the Veteran sought treatment for right knee complaints in July 1964. If the examiner determines that any knee disability is related to service, the examiner is also asked to address the functional impact of the disability. The examiner is advised that lay evidence of continuity of symptoms after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that the symptom, for example pain, is derived from an injury, disease, or event in service. If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether actual causation cannot be determined because there are several potential non-service related causes of the current tremor disability, if so, identify the other potential causes for the symptoms of tremors after service as described by the Veteran, or that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record, considering current medical knowledge. 3. Forward the Veteran's claims file to the same examiner who performed the May 2013 VA mental health examination, or if unavailable, to have another competent VA examiner, to review the file. The claims file should be made available to the examiner in conjunction with obtaining nexus opinions and/or examination. If the examiner believes a VA examination is necessary in order to provide the requested opinions, such examination should be scheduled, and all testing should be conducted. A complete rationale must be provided for each opinion offered. The examiner is asked to address: a). Whether it is at least as likely as not (probability of 50 percent) that any psychiatric disability present, to include depressive disorder, was incurred in or aggravated by service, including the treatment in February and March 1960 and subsequent discharge by the Navy after finding the Veteran unfit for further duty. b). Whether it is at least as likely as not (probability of 50 percent) any psychiatric disability present, to include depressive disorder, is proximately due to or chronically aggravated by the Veteran's knee disabilities. If, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether an opinion is beyond what may be reasonably concluded based on the evidence of record. Any additional development deemed necessary to provide the requested opinion should be identified. The VA examiner is also asked to consider that the Veteran is competent in describing symptoms at the time which supports a later diagnosis by a medical professional. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. 4. After the development requested is completed, readjudicate the claims for service connection for left and right knee disabilities, service connection for an acquired psychiatric disorder, and entitlement to a TDIU, based on a review of the entire evidentiary record. If any benefit sought remains denied, furnish the Veteran a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs