Citation Nr: 1719829 Decision Date: 06/05/17 Archive Date: 06/21/17 DOCKET NO. 11-17 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a lumbar spine disability, including as secondary to a right knee disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to September 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In March 2013, the Veteran testified at a videoconference hearing held before the undersigned Acting Veterans Law Judge. In September 2014, the Board remanded the Veteran's claims. When the case was most recently before the Board in March 2016 the claims were again remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A right knee disability was not noted at service entry. 2. There is not clear and unmistakable evidence that subluxation of the right knee existed prior to service. 3. The Veteran's current right knee disabilities were not present during service or within one year of active service, and they are not caused by or related to any incident of service, to include the two documented right knee injuries in service. 4. A lumbar spine disability was not noted at service entry. 5. Spina bifida and disc dysfunction clearly and unmistakably existed prior to service. 6. Spina bifida and disc dysfunction clearly and unmistakably were not aggravated during service. 7. Spina bifida and disc dysfunction did not increase in severity during service. 8. The Veteran's current lumbar spine disabilities, diagnosed as degenerative joint disease and degenerative disc disease, were not present during service or within one year of active service, and they is not caused by or related to any incident of service, to include the documented back injuries in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2016). 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 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 (2016). A January 2010 letter satisfied the duty to notify provisions. The letter included proper notice to the Veteran regarding the regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA examinations were conducted in October 2009 and October 2014 and medical opinions were obtained in May 2016. The record does not reflect that, when considered together, the examinations or opinions were inadequate for rating purposes. The Board finds that collectively the examination and opinions are adequate because they were based on an examination of the Veteran, to include discussion of his complaints and symptoms, and the medical opinions contain adequate rationales predicated on a thorough review of the claims file. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its September 2014 and March 2016 remands. The September 2014 remand instructed the RO/AMC to schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of the Veteran's right knee and lumbar spine disabilities. The March 2016 remand specifically instructed the RO/AMC to obtain necessary authorization and identifying information from the Veteran regarding spinal X-rays in 2012 or 2013 and to obtain addendum opinions regarding the Veteran's right knee and lumbar spine disabilities. The AMC then sent the Veteran a letter in March 2016 requesting such information. The records the Veteran authorized VA to obtain were obtained and associated with the claims file. The Board finds that the RO has complied with the Board's instructions and that together, the October 2014 VA examination and May 2016 opinion reports substantially comply with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the holding in Allen; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). 38 U.S.C.A. § 1111 sets forth governing principles relating to the presumption of a Veteran's soundness of condition upon entry to service. It provides that "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service." 38 U.S.C.A. § 1111. The implementing regulation, 38 C.F.R. § 3.304 (b), similarly provides that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). A history of preservice existence of a disease or injury recorded at the time of examination does not constitute a notation of such a malady, but instead, must be considered with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1). A veteran thus enjoys an initial presumption of sound condition upon service entry if the enlistment records do not reflect that a veteran has a disease or injury that subsequently becomes manifest during service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004) (noting that "[w]hen no preexisting condition is noted upon entry to service, the veteran is presumed to have been sound upon entry," but that "if a preexisting disorder is noted upon entry to service, the veteran cannot bring a claim for service connection for that disorder"). Such an initial presumption, however, is not absolute and may be rebutted. Wagner, 370 F.3d at 1096-1097. Section 1111 permits VA to overcome the presumption of soundness upon a two-prong showing by clear and unmistakable evidence of both a preexisting condition and a lack of inservice aggravation to overcome the presumption of soundness for service. Id. If the government fails to demonstrate either prong, the rebuttal fails and the soundness presumption remains. Id. (recognizing that the government's failure to rebut the soundness presumption means that the veteran's claim is one for direct service connection); see also Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The government's "burden of proof is a formidable one," Id., and it "means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999); accord Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (noting that "[t]he clear-and-unmistakable-evidence standard is an 'onerous' one"). A preexisting 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. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306 (a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b)(1); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Right Knee Disability The Veteran claims that service connection for a right knee disability is warranted because symptoms of her right knee disability first manifested prior to service, when she sustained a hyperextension injury. She alleges that the symptoms have continued to manifest since then, eventually developing into her current right knee disability, diagnosed in 1998 as a subluxing patella. The service entrance examination is silent with respect to right knee complaints, findings or diagnoses, except for the presence of multiple scars on both knees. The Veteran denied trick or locked knee, arthritis, or other bone or joint deformity on the entrance examination report of medical history. The service treatment records reflect that the Veteran was seen for right knee pain in June and July 1988. A June 1988 service treatment record reflects that the Veteran complained of right knee pain which had been present three days. The impression was contusion. She was instructed to take Motrin for five days and not run/march for five days. A July 1, 1988 service treatment record notes that a rack of M-60 rifles fell on the Veteran's right knee. There was no laxity. There was tenderness and mild swelling. It was noted that there was no history of knee pathology. The impression was rule out multiple stress reaction/overuse of right lower extremity. She was put on profile for 28 days. A follow-up July 13, 1988 service treatment record notes that there was 100 percent relief of all symptoms. The assessment was resolving overuse bilateral legs. A February 1989 service treatment record reflects complaints of right foot and knee pain when the Veteran got her leg caught in a door. There was full range of motion and mild tenderness to lateral patella. There are multiple follow-up service treatment records involving the same right foot complaints; however, none of the follow-up records reflects any further complaints, findings or treatment for any right knee problems. A March 1996 private treatment record from Orthopaedic Associates of Duluth reflects that the Veteran was seen for evaluation of her right knee. It was noted that her history dates back to age 13 when she sustained a hyperextension injury to her right knee jumping into a pool. She injured her right knee again in 1988 when a number of rifles fell on it. Additionally, when she was at work in December 1995 she went into a hyperflexion position and felt extreme pain in her knee. X-rays were negative. The diagnoses included possible patellofemoral subluxation/dislocation and possible meniscal or anterior cruciate pathology. A March 1998 private treatment record from Orthopaedic Associates of Duluth reflects that the Veteran's right knee had gotten worse. The diagnosis was internal derangement, most likely torn medial meniscus. An April 1998 private treatment record from St. Lukes Hospital notes that the Veteran has a long history of right knee pain. She had a hyperextension injury when she was 13 and a traumatic injury in service when a rack of machine guns fell and hit her right above the knee. She has had ongoing problems with knee swelling, stiffness, popping and locking. She underwent a diagnostic arthroscopy, which revealed mild chondromalacia and subluxation of the patella. A November 1998 private treatment record from Orthopaedic Associates of Duluth reflects that a prior MRI of the right knee was negative. The diagnosis was pes anserine bursitis with muscle inflammation. A January 1999 private treatment record from Orthopaedic Associates of Duluth reflects that the Veteran was in a motor vehicle accident about two weeks earlier. As a result of the accident the Veteran sustained a direct blow to both knees. The diagnosis was traumatic chondromalacia of the knees, patellofemoral joint, right worse than left. A December 1999 private treatment record from Orthopaedic Associates of Duluth indicates that the Veteran has significant right knee pain related to a motor vehicle accident. The diagnosis was traumatic chondromalacia, possibly internal derangement. A December 1999 MRI of the right knee showed no internal derangement. A May 2001 treatment record notes that the Veteran reinjured her right knee in April. An MRI of the right knee showed some chondromalacia. The diagnosis was chondromalacia patella. A December 2004 private chiropractor record notes that in 1999 the Veteran had a motor vehicle accident where both knees hit the steering wheel. An October 2009 VA examination report reflects the Veteran's complaint that her initial right knee injury was in 1988 when she hit it on a piece of equipment. It was painful and swollen and resolved without residuals. She then had intermittent problems with swelling and pain. The examiner opined that the Veteran's right knee contusion in service resolved without residuals and she has no active diagnosis referable to military service. The examiner noted that the Veteran had injuries to her right knee prior to military service and that during service the Veteran was last seen for her right knee in February 1989. Therefore, the examiner opined that the evidence does not show that the right knee problems are due to service. An October 2009 X-ray study revealed that the patella appeared well seated and the tibiofemoral joint space appeared reserved. An October 2014 VA examination report reflects a diagnosis of right knee chondromalacia, first diagnosed in 1999. It was noted that the Veteran reported injuring her knee in June 1988. She was standing, riding in a vehicle, when it hit a bump and a rack of weapons fell, hitting her knee. She indicated that she was on crutches and light duty for six weeks. She further indicated that he knee worsened over time and in 1999 she had arthroscopic surgery. She denied any post-service injury to her right knee. She reported that in 1999 she was in a motor vehicle accident but that the accident only injured her left knee; her right knee was unaffected. The examiner opined that it is less likely as not that chondromalacia patella was incurred in service. The examiner reasoned that the Veteran was diagnosed with traumatic chondromalacia after she injured her knee in a motor vehicle accident after service in 1999. Although she was seen multiple times by medical providers between 1996 and the accident in 1999 there was no documented diagnosis of chondromalacia until after the car accident. Therefore, the chondromalacia patella is likely related to the knee injury sustained after service. The examiner opined that right knee contusion noted in service was self-limiting and resolved. A May 2016 VA medical opinion report indicates that it is more likely than not that the Veteran had a chronic subluxing patella which initially manifested itself prior to active military service. In this regard, the Veteran reported a hyperextension injury prior to service and later reported intermittent subluxation since then. She had an additional hyperextension injury after service and was found to have subluxing patella on arthroscopy at that time. The examiner opined that it is at least as likely as not that the Veteran's subluxing patella has become chronic and it had its earliest manifestation prior to military service. The examiner further opined that it is less likely as not that the right knee subluxing patella was aggravated beyond normal progression by activities of military service. The examiner reasoned that the Veteran was not treated for any episodes of subluxation during active duty. No diagnosis of chronic subluxation was made during active duty and the Veteran did not have care for subluxation until she had a work-related injury after service. Another May 2016 VA opinion report indicates that the Veteran had injury to the right knee prior to service but was deemed fit. She later reported intermitted subluxation from that injury forward. She was treated for two contusions to her knee during active duty but did not have chronic care. She had a work-related injury to her knee after service, with question of intra-articular damage. Three years later she had minimal chondromalacia and subluxed patella. She then experienced a motor vehicle accident and had traumatic chondromalacia patella. Therefore, her subluxing patella was present prior to service and not caused by service. She was noted to have very mild chondromalacia patella in April 1998 and later not noted to have an arthroscopic diagnosis. Therefore, with only mild chondromalacia present about eight years after service there is insufficient evidence to find that her activities of military service, including two contusions, caused the chondromalacia patella. In this case, no right knee disability was noted at service entry. As such, the Veteran is presumed sound at service entrance. Regarding whether the presumption of soundness may be rebutted in this case, the May 2016 VA examiner opined that it is more likely than not/at least as likely as not that the subluxing patella existed prior to service and the private treatment records suggest that the Veteran's right knee problems began prior to service, namely when she was 13 and sustained a hyperextension injury. Although there is clearly evidence that the Veteran had a right knee injury or injuries prior to service and the May 2016 VA examiner opined that the subluxed patella existed prior to service, the Board finds that such evidence does not clearly and unmistakably establish that subluxation of the patella was present prior to service. Importantly, while the May 2016 VA examiner opined that it was more likely than not that the subluxing patella pre-existed service, the standard is a much higher one, that of clear and unmistakable evidence. Additionally, while the evidence shows the existence of a reported hyperextension knee injury prior to service, there is nothing in the record showing that any diagnosis resulting from such injury included subluxation of the patella. Finally, there is no medical evidence of a subluxing patella until several years after service. However, even if the evidence clearly and unmistakably showed that subluxation of the patella existed prior to service, there is not clear and unmistakable evidence that the patellar subluxation was not aggravated during service. The May 2016 VA examiner indicated that it is less likely as not that the right knee subluxing patella was aggravated beyond normal progression by activities of military service. Again, this is not the standard. The standard is whether there is clear and unmistakable evidence that there was no aggravation. While there is no evidence of any findings or diagnoses of subluxation during service, there is evidence of right knee injuries and right knee pain during service. Additionally, there is no separation examination of record. Under these circumstances, the Board cannot find that there is clear and unmistakable evidence that any pre-existing patellar subluxation was not aggravated during service. Therefore, having not rebutted the presumption of soundness, the Veteran is presumed sound at service entrance and the claim proceeds on a direct service incurrence basis. As noted above, the Veteran was diagnosed with a right knee contusion and overuse syndrome of the right lower extremity in service. She claims that she had ongoing symptoms since service (she actually claims she had ongoing symptoms since her pre-service right knee injuries). While there is no evidence of treatment for any right knee disability in the years immediately after service or until 1996, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Despite such complaints of ongoing symptoms, the 1996 private treatment record notes a work-related right knee injury in 1995. Moreover, the October 2016 VA examiner pointed out that no diagnosis of chronic subluxation was made during active duty and the Veteran did not have care for subluxation until she had a work-related injury after service. Such an intervening event tends to show that the current right knee subluxing patella is not the result of the right knee contusions during service, but instead is due to the post-service work-related injury. As such, service connection for subluxation of the patella must be denied. In rendering this decision, the Board has taken into account the Veteran's statements that her symptoms had been ongoing. However, the Board finds the medical evidence more persuasive in this regard. Additionally, the Board notes that at the October 2014 VA examination, the Veteran was less than credible in reporting that the motor vehicle accident she was involved in only affected her left knee. Moreover, the VA examinations do not show that the Veteran reported the work-related injury in 1995 or her additional injury in April 2001. Based upon these inconsistencies and omissions, the Board finds that the Veteran is less than credible. With regard to the Veteran's right knee chondromalacia, the evidence also shows that it is not at least as likely as not that the chondromalacia is related to service. In this regard, the service treatment records do not show any evidence of chondromalacia and there is no evidence of chondromalacia until several years after service. Importantly, the chondromalacia diagnosis was not rendered until after a motor vehicle accident in which the Veteran injured her knees. Additionally, the October 2016 VA opinion report indicates that because the Veteran was only noted to have very mild chondromalacia patella in April 1998, which is about eight years after service, there is insufficient evidence to find that her activities of military service, including two contusions, caused the chondromalacia patella. As such, the Board finds that service connection for chondromalacia patella is not warranted. In rendering this decision, the Board has accounted for the Veteran's report of ongoing symptoms, but the Board finds that the medical evidence is more persuasive than the Veteran's statements, which as noted above, have been determined to be less than credible due to omissions and inconsistencies. In sum, the Board finds that service connection for a right knee disability, to include subluxation of the patella and chondromalacia, is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lumbar Spine Disability The Veteran claims that service connection for a lumbar spine is warranted because it is due to her right knee disability. Specifically, the Veteran alleges that her right knee disability has caused her to walk in an altered manner, resulting in a spine that is out of alignment. This malalignment allegedly caused her to develop her current lumbar spine disability. She alternatively alleges that her lumbar spine disability is related to in-service back injuries, which might have resulted in a fracture. Initially, as service connection has been denied for a right knee disability, a claim of service connection for a lumbar spine disability as secondary to a right knee disability must fail. As such, service connection for a lumbar spine disability as secondary to a right knee disability is denied. The service entrance examination is silent with respect to any back complaints, findings or diagnoses. The Veteran denied recurrent back pain, arthritis, or other bone or joint deformity on the entrance examination report of medical history. An August 1988 service treatment record notes that the Veteran was seen for low back pain after moving furniture. August 1988 lumbar spine X-ray revealed no fracture or dislocation. The impression was normal variant of lumbar spine. In December 1988 the Veteran was involved in a motor vehicle accident in which she side-swiped a guard rail three times. No medical care was sought. A January 1989 service treatment record notes complaints of upper back pain for about one week (since car accident). The assessment was back spasms. A January 1989 X-ray study of the spine was normal. A December 2004 private chiropractor treatment record notes a diagnosis of spina bifida and disc dysfunction, asymptomatic over the previous several years. An October 2009 VA examination report reflects that the Veteran has had gradual onset of her low back condition over the past six years. The examiner noted that after the December 1988 car accident and subsequent January 1989 back complaints/spasms but normal X-rays, there are no further complaints regarding the Veteran's back in the service or post-service treatment records until December 2004 when the Veteran reported back pain while walking on ice. At that time it was noted that in 1999 the Veteran was involved in a motor vehicle accident. It was noted that a November 2007 a private treatment record reflects complaints of back pain after working on a computer five hours a day. A June 2008 treatment record notes strain related to landscaping but the strain is not specified. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine and opined that it is less likely as not related to military service. The examiner reasoned that there was an intervening interceding event which is the immediate cause of her back condition. An August 2014 private treatment record from Mount Royal Medical Clinic notes that the Veteran was seen for evaluation of mid back pain that had been present for three years. It was noted that she was in a motor vehicle accident in November 2011. She was rear-ended. She was found to have a compression fracture of T4 and other cervical spine injuries. An October 2014 private treatment record from Mount Royal Medical Clinic notes that the Veteran was seen for evaluation of low back pain. It was noted that a September 2014 MRI revealed moderate degenerative disc disease at L3-L4 and L5-S1. It was noted that she had been in a motor vehicle accident in November 2011 when she was rear-ended. An October 2014 VA examination notes a diagnosis of degenerative arthritis of the spine. The Veteran reported that her back symptoms began in 1991 or 1992 when she bent over to grab something and her back popped. The Veteran did not mention the November 2011 motor vehicle accident. The examiner opined that the degenerative joint disease of the lumbar spine is likely related to aging. There is no evidence in the service treatment records of a joint injury, such as a fracture which would cause degenerative joint disease. A November 2014 private treatment record from Mount Royal Medical Clinic notes that the Veteran was seen for evaluation of low back pain which had been present since a November 2011 motor vehicle accident. A May 2015 private treatment record from Mount Royal Medical Clinic notes that the Veteran was seen for evaluation of low back pain. It was noted that the onset of low back pain symptoms dates back to a November 2011 motor vehicle accident in which the Veteran was rear-ended. A May 2016 VA opinion report indicates that the Veteran's lumbar spine degenerative joint disease and degenerative disc disease is less likely as not proximately due to or related to the Veteran's right knee disability. Another May 2016 VA opinion report indicates that the claimed condition, which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that the Veteran was treated for low back strain during service, but she did not have chronic care for a low back injuring during service until she had an intervening injury. Therefore, there is insufficient evidence that the pre-existing developmental condition was chronically aggravated beyond its normal progression by her activities of military service, including documented back injuries. Another May 2016 VA opinion report finds that it is less likely than not that the Veteran's degenerative joint disease of the lumbar spine was incurred or caused by the claimed in-service injury, event, or illness, including two documented in-service lumbar spine injuries. The examiner reasoned that a Mount Royal medical note discusses a history of compression fracture of T4. A later 2014 MRI makes no mention of a compression fracture. The examiner pointed out that the lumbar spine degenerative joint disease is many levels down from the T4 compression fracture. If the compression fracture was due to the inservice motor vehicle accident instead of the 2011 high energy motor vehicle accident, it would not cause alteration in the function of the lumbar spine many levels below the compression fracture to cause the development of degenerative joint disease. Another May 2016 VA opinion report indicates that the Veteran's degenerative disc disease of the lumbar spine is not at least as likely as not related to service, to include the two documented inservice lumbar spine injuries. The examiner noted that the Veteran had lumbar strain and is competent to report back symptoms after moving furniture and after a motor vehicle accident in service. The examiner opined that muscular strains do not cause degenerative disc disease, and therefore it is less likely as not that the Veteran's degenerative disc disease is related to her two documented lumbar spine injuries in service. In this case, no lumbar spine disability was noted at service entry. As such, the Veteran is presumed sound at service entrance. Regarding whether the presumption of soundness may be rebutted in this case, the private medical evidence from December 2004 shows that the Veteran has spina bifida and disc dysfunction, which have been asymptomatic for several years. Moreover, the May 2016 VA examiner opined that this condition clearly and unmistakably existed prior to service. As such, the Board finds that the Veteran's spina bifida and disc dysfunction clearly and unmistakably existed prior to service. Regarding whether there is clear and unmistakable evidence that the spina bifida or disc dysfunction was not aggravated during service, the Board notes that the May 2016 VA examiner opined that the preexisting condition was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that the Veteran was treated for low back strain during service, but she did not have chronic care for her low back during service or until she subsequently had an intervening injury. Additionally, the service treatment records reflect normal X-ray studies of the spine. As such, no worsening of any pre-existing spina bifida or disc dysfunction was noted during service. Under these circumstances, the Board finds that there is clear and unmistakable evidence that any pre-existing spina bifida and/or disc dysfunction was not aggravated during service. Therefore, having rebutted the presumption of soundness, the Veteran is presumed to have had spina bifida and disc dysfunction at service entrance and the claim proceeds on an aggravation basis. Regarding whether the Veteran's spina bifida and/or disc dysfunction increased in severity during service, the service treatment records clearly show they did not. Specifically, X-ray studies of the spine from 1988 and 1989 are within normal limits; as such, there is no showing of any worsening of these disabilities. Moreover, the back complaints during service were muscular in nature and none of the service treatment records reflects any permanent residuals or ongoing complaints. The post-service medical evidence also shows that the spina bifida and disc dysfunction did not increase in severity during service. In this regard, the post-service medical evidence fails to mention spina bifida and/or disc dysfunction whatsoever except the December 2004 private chiropractor record which notes that they have been asymptomatic for several years. As such, there is no evidence that these disabilities increased in severity during service. Therefore, service connection on an aggravation basis for spina bifida/disc dysfunction is not warranted. With respect to the diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine, the Board also finds that these disabilities were not incurred in or caused by service. Notably, there is no evidence of either disability or precursor to in the service treatment records. Moreover, the August 1988 and January 1989 X-rays studies do not show degenerative joint disease of the lumbar spine. The medical evidence shows that these disabilities were diagnosed years after service and the only medical opinions are against the claims. The May 2016 VA examiner specifically indicated that it is less likely as not that degenerative joint disease of the lumbar spine is etiologically related to service, to include the two documented lumbar spine injuries in service. The examiner reflected that the lumbar spine degenerative joint disease is many levels down from the T4 compression fracture, and noted that if the compression fracture was due to the inservice motor vehicle accident in December 2008 instead of the 2011 high energy motor vehicle accident, it would not cause degenerative joint disease of the lumbar spine many levels below the compression fracture. The May 2016 VA examiner also opined that muscular strain, which is what the Veteran experienced in service, does not cause degenerative disc disease. The Board also points out that the private medical evidence suggests that the Veteran's current low back pain, diagnosed as degenerative joint disease and degenerative disc disease, is due to a November 2011 motor vehicle accident. Importantly, those medical treatment records reflect the Veteran's own report that her low back pain began after the November 2011 motor vehicle accident. In sum, the evidence does not reflect that the pre-existing spina bifida or disc dysfunction increased in severity during service. The medical evidence shows that these pre-existing disabilities were not aggravated during service, to include by the in-service back injuries. Additionally, the evidence does not reflect that degenerative disc or joint disease of the lumbar spine was present during service or are otherwise related to service. Finally, the evidence shows that degenerative joint disease was diagnosed several years after service, so service connection on a presumptive basis is not warranted. Based on the foregoing, service connection for a lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a lumbar spine disability, including as secondary to a right knee disability is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs