Citation Nr: 1619237 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 10-18 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1992 to November 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in November 2011; a transcript of the hearing is associated with the claims file. The Board remanded the case in March 2013, to seek additional records, have the Veteran examined, and to obtain medical opinions. This was accomplished, and the case has since been returned to the Board. FINDINGS OF FACT 1. The most probative evidence of record shows that a back disability was not shown in service, degenerative joint disease of the lumbosacral spine did not manifest itself in the first post-service year, and current disability has not been linked to service. 2. The claimed knee disabilities have not been medically linked to service; no knee pathology is currently diagnosed. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131, 1154, 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for service connection for a right and left knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Under 38 U.S.C.A. § 5102, VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim. The appellant must also be notified of what specific evidence to provide and what evidence VA will attempt to obtain. VA likewise has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). As to the claims decided herein, the Board finds that the pre-adjudication letter sent the Veteran by the RO in December 2008 provided him with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence, including private treatment records and the Veteran's records from the Muskogee, Oklahoma VA Medical Center. In addition, the Veteran was provided with VA examinations in January 2010 and June 2013. The Board finds these examinations adequate because they contained a relevant medical history, included a review of the record and an explanation for the conclusions expressed. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims herein, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2015); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson, supra. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Veteran alleges that he has back and bilateral knee disabilities that are related to his service, particularly injuries noted therein. His DD Form 214 reveals that his military occupational specialty was cavalry scout. The Veteran's decorations and awards include a parachutist badge. The Veteran's service treatment records include a December 1993 report noting his complaint of left knee pain for two days after tripping and falling on his knee. March 1995 records reflect complaints of lower back pain due to falling in the shower and hitting his back on the step into the shower; the assessment was tender right paravertebral spasm. X-rays of the lumbosacral spine were normal except for an incomplete fusion of the posterior elements of the 1st sacral segment. On August 1996 separation examination, the lower extremities and spine were normal on clinical evaluation; the Veteran denied recurrent back pain, a "trick" or locked knee, or arthritis. Private chiropractic records from March 2008 indicate complaints of lower back pain, due to "overuse." Post-service VA treatment records include January 2009 lumbosacral spine and bilateral knee x-rays that were unremarkable. A separate January 2009 report noted the Veteran's report that his knee problems were due to parachute jumps during service, and found on physical examination the Veteran had crepitation of the anterior knee, bilaterally. An August 2009 report noted MRI of the left knee revealed, to the radiologist, a small tear on the undersurface of the posterior horn of the medial meniscus; the orthopedic surgeon did not believe the MRI was suggestive of anything remarkable. The impression was pain of undetermined etiology. October 2009 treatment records note that lumbar MRI revealed L5-S1 disc herniation and annular tear. The Veteran subsequently received a lumbar epidural steroid injection and a left L5 selective nerve root block. The Veteran was afforded a VA spine examination in January 2010. He reported that his chronic back pain began in 1995, during active service when he fell in the shower. He also reported that he fell in 1995 but was told that if he could walk there was no problem, and that he did not receive any treatment. It was noted that the Veteran had currently worked in unloading and loading at a Wal-Mart distribution center. The examiner diagnosed the Veteran with degenerative disc disease with chronic lumbosacral strain. It was opined that the Veteran's current lower back disability is less likely related to military service was more likely related to his current occupation as a labor worker. At the November 2011 Travel Board hearing, the Veteran testified that he performed approximately 50 airborne jumps during service. He also testified to injuring his knees and back during service in the above-documented events, and he associated his current complaints with his airborne jumps and marching. He stated back symptomatology began approximately six months after service, and has continued since service. In April 2013, the Veteran's claims were remanded to the RO for further development, to include obtaining private treatment records, as well as updated VA treatment records. The Veteran was also provided with a VA examination of the back and bilateral knees in June 2013. At that examination, as pertained to the Veteran's back, the examiner diagnosed degenerative disc disease of the lumbar spine, with a diagnosis date of 2011. On the question of nexus, the examiner determined that it was less likely than not that the Veteran's back disability was related to service. As rationale, the examiner indicated that the actual finding of degenerative disc disease was of recent origin, having been first noted in 2008 and 2009, some 16 years after service. Such a gap in time made it unlikely that the disability was due to the Veteran's military service, in light of more recent factors. The examiner noted that the Veteran had complained of back pain since service, but that his occupation requiring strenuous physical labor was likely the cause. In addition, the examiner cited studies by name which showed the high prevalence of lower back pain in adults between 35 and 55 years of age. As for the Veteran's bilateral knees, the examiner found no disability in either knee. He acknowledged the January 2009 MRI which showed a small tear in the medial meniscus, but likewise noted the orthopedist's determination at that time that there was a lack of pathology. The examiner also noted moderate tenderness in the Veteran's right knee and mild tenderness in the left, with very mild crepitance bilaterally, yet nevertheless concluded no pathology was present. Although it is certainly counterintuitive to conclude this record does not show the presence of a knee disability where an MRI revealed what one professional considered to be a tear, others examining that finding determined it did not represent pathology. As events unfolded and no further intervention occurred, the medical consensus appears to be that there is no pathology. Pain itself is not a disability. Absent the presence of a disability, there is no basis upon which to establish service connection. Regarding the lumbar spine, the only competent medical evidence of record-the reports from the January 2010 and June 2013 VA examiners-are unfavorable to the Veteran. After considering the Veteran's history, based on a review of his STRs, VA treatment records, and private treatment records, both examiners concluded that the Veteran's current low back disability was not caused by or a result of active duty service. The January 2010 examiner concluded that the Veteran's low back problems stemmed from his labor-intensive employment at a Wal-Mart distribution center. The June 2013 examiner also opined that the Veteran's back disability was a result of his post service employment, and not the in-service fall. In addition, the 2013 examiner addressed the Veteran's contentions that he had experienced back pain since service, and again found the cause of such pain to be related to manual labor and not military service. Moreover, the opinions of both VA examiners are not contradicted by any other competent evidence of record. The Board notes that while the Veteran is competent to report back pain, he is not shown to have the medical expertise necessary to opine on the etiology of his currently-diagnosed back disability. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Thus, there is no reasonable doubt to resolve in his favor, and the appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R § 3.102. ORDER Service connection for a back disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs