Citation Nr: 1751240 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-18 368A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include arthritis. 2. Entitlement to service connection for a neck disability, to include arthritis. ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corp between September 1949 and November 1957, including combat service in Korea for which he received the Bronze Star with "V" device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Regional Office (RO) of the Department of Veterans' Affairs (VA) in Philadelphia, Pennsylvania. In February 2016, the Board remanded this appeal for further development, to include providing the Veteran with VA examinations to evaluate his neck and knee disabilities. These examinations were conducted in June 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's current bilateral knee disability was not caused by a disease or injury during active duty, and did not manifest to a compensable degree within the Veteran's first post-service year. 2. The Veteran's current neck disability was not caused by a disease or injury during active duty, and did not manifest to a compensable degree within the Veteran's first post-service year. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability are not met, and service-connection may not be so presumed. 38 U.S.C.A. §§ 1110, 1154(b) (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for service connection for a neck disability are not met, and service connection may not be so presumed. 38 U.S.C.A. §§ 1110, 1154(b) (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Entitlement to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A nexus to service may be presumed when "a chronic disease is 'shown in service (or within the presumptive period under § 3.307).'" Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). To be "shown in service," there must be "a reliable diagnosis of the chronic disease while in service.... [T]he disease identity must be established and the diagnosis not be subject to legitimate question." Id. In such cases, the claimant need not demonstrate nexus, "so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. Alternatively, continuity of symptomatology may be used in place of nexus "[i]f evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported.'" Walker, 708 F.3d at 1336 ; 38 C.F.R. § 3.303(b). 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Bilateral Knee Disability In this case, the Veteran claims service connection for a bilateral knee disability that he believes is related to service. With respect to the requirement for a current diagnosis, an October 2007 post-service VA treatment record first indicated a diagnosis of arthritis. In May 2011, a private treatment provider diagnosed the Veteran with degenerative joint disease of the knees. The June 2016 VA examination report also noted a diagnosis of osteoarthritis of the knees. Thus, the Board finds the requirement for a current disability is met. The Veteran contends that his bilateral knee disability is the result of his extreme cold exposure during service in Korea. See October 2012 Statement in Support of Claim. His DD Form 214 indicates that he received the Korean Service Medal, and his personnel records demonstrate service during operations in Korea. Thus, the Board finds that the Veteran's reports of service in Korea, and exposure to extreme cold conditions, are supported by the available documentation, and the second element of direct service connection is satisfied. Therefore, the remaining question is whether there is a nexus, or link, between the current shown disability and the Veteran's service. Initially, the Board notes that the November 1957 separation examination documented normal lower extremities, with no indication of any knee disabilities at that time. A November 2009 private treatment record noted the Veteran's reports of knee pain that began several years earlier. In a May 2011 statement, the Veteran reported seeking treatment for arthritis in 1960, 1970, and 1993. He further stated that previous x-rays indicated severe osteoarthritis. In an October 2012 statement, the Veteran described receiving treatment for his arthritis as early as 1958. He stated that the condition began at the age of 26, due to cold exposure during service in Korea. In June 2016, the Veteran was afforded a VA examination to evaluate his bilateral knee disability. The examiner opined that the disability was less likely than not related to service. She based this conclusion on the Veteran's reports that his knee pain first began while working as a mail carrier, as well as upon the normal separation examination results. At the examination, the Veteran also denied having knee pain in service. Most recently, in June 2017, the Board obtained a VHA opinion to address the nature of the Veteran's bilateral knee disability. The examiner opined that it was less likely than not that the knee disability had its onset or was otherwise related to his active military service, including exposure to cold temperatures. He reasoned that exposure to cold temperatures does not predispose knee joints to develop arthritis at a later date. Additionally, he supported his conclusion based upon the normal separation examination results, which indicated that the Veteran was not experiencing knee problems at that time. Based on the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral knee disability. While the evidence of record shows that he has a current diagnosis of degenerative joint disease of the knees, the probative evidence of record demonstrates that the disability is unrelated to his service. Both examiners noted the November 1957 separation examination, which indicated the Veteran's knees were normal at that time. The VHA examiner also indicated that the Veteran's cold exposure during service is not known to result in knee arthritis. To the extent that the Veteran has offered his own opinion that his bilateral knee disability is due to service, the Board notes that although he is competent to report symptoms including knee pain and his medical history, he has not been shown to have the requisite medical expertise and training to diagnose and opine as to the origin of a complex medical condition such as an orthopedic disability. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board places great probative weight on the June 2017 VHA opinion. This opinion was adequate because the examiner reviewed the entire medical history file, considered the Veteran's lay statements, and provided a conclusion based on an accurate factual basis with supporting rationale. The examiner clearly noted the diagnosis of degenerative joint disease, as well as the onset of April 2007. He did not reject the symptoms or diagnosis, but rather did not recognize them as related to the Veteran's military service based on his review of the treatment records which fully support his conclusions. Additionally, he provided a supporting rationale which explained that the Veteran's cold exposure while stationed in Korea would not have predisposed him to knee arthritis and that there was no evidence indicating that his knees were abnormal upon separation. Here, the opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has had ample opportunity to supplement the record with a medical opinion against the finding of the May 2017 VHA expert, but has not done so. The Board finds the VHA examiner's opinion is the most competent and probative evidence of record addressing the question of whether his bilateral knee disability is related to service. The Board adds that the evidence is against a finding that a chronic knee disability existed in service, or manifested within the Veteran's first post-service year. The Veteran's assertions of continuity of symptoms are outweighed by the fact that he had a "normal" clinical evaluation of his lower extremities upon separation from service in 1957. Moreover, his has provided conflicting accounts as to when his pain started, specifically denying knee pain in service at the June 2016 VA examination, and noting post-service onset while serving as a mail carrier. For the foregoing reasons, the Board must deny the claim for service connection for a bilateral knee disability. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. B. Neck Disability The Veteran also claims service connection for a neck disability that he believes is related to service. With respect to the requirement for a current diagnosis, an October 2007 post-service VA treatment record first indicated a diagnosis of arthritis. A January 2009 private treatment record later documented mild degenerative changes of the neck. The June 2016 VA examination report also noted a diagnosis of degenerative joint disease of the cervical spine. Thus, the Board finds the requirement for a current disability is met. As discussed above, the Veteran contends that his neck disability is the result of his extreme cold exposure during service in Korea. See October 2012 Statement in Support of Claim. The Board has found that the Veteran's reports of service in Korea are supported by the available documentation. Additionally, a March 16, 1953 service treatment record documented in-service treatment for a carbuncle infection of the neck, which was treated and resolved during service. Thus, the second element of direct service connection is satisfied. Therefore, the remaining question is whether there is a nexus, or link, between the current shown disability and the Veteran's service. Initially, the Board notes that the November 1957 separation examination documented normal spine conditions, with no indication of any cervical spine disabilities at that time. Private treatment records from January 2009 and September 2009 documented the Veteran's complaints of neck pain, which radiated into his shoulders, and was aggravated by physical activities and sleep. As noted above, in May 2011 and October 2012 statements, the Veteran reported seeking treatment for arthritis as early as 1958, which he believed was due to cold exposure during service in Korea. In June 2016, the Veteran was afforded a VA examination to evaluate his neck disability. The examiner opined that the disability was less likely than not related to service. She based this conclusion on the Veteran's reports that his neck pain first began while working as a mail carrier, as well as upon the normal separation examination results. At this examination, the Veteran denied having neck pain in service. Most recently, in June 2017, the Board obtained a VHA opinion to address the nature of the Veteran's neck disability. The examiner opined that it was less likely than not that the neck disability had its onset or was otherwise related to his active military service, including exposure to cold temperatures. He reasoned that exposure to cold temperatures does not predispose the cervical spine to develop arthritis at a later date. Additionally, he supported his conclusion based upon the normal separation examination results, which indicated that the Veteran was not experiencing neck problems at that time. The examiner acknowledged the March 1953 notation of treatment for a carbuncle, but stated that such a diagnosis was unrelated to cervical spine arthritis. Based on the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a neck disability. While the evidence of record shows that he has a current diagnosis of degenerative joint disease of the cervical spine, the probative evidence of record demonstrates that the disability is unrelated to his service. Both examiners noted the November 1957 separation examination, which indicated the Veteran's spine was normal at that time. The VHA examiner also indicated that the Veteran's cold exposure during service is not known to result in cervical spine arthritis. To the extent that the Veteran has offered his own opinion that his neck disability is due to service, the Board notes that although he is competent to report symptoms including neck pain and his medical history, he has not been shown to have the requisite medical expertise and training to diagnose and opine as to the origin of a complex medical condition such as an orthopedic disability. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board places great probative weight on the June 2017 VHA opinion. This opinion was adequate because the examiner reviewed the entire medical history file, considered the Veteran's lay statements, and provided a conclusion based on an accurate factual basis with supporting rationale. The examiner clearly noted the in-service treatment for a neck carbuncle, the diagnosis of degenerative joint disease, as well as the beginning of treatment in January 2009. He did not reject the symptoms or diagnosis, but rather did not recognize them as related to the Veteran's military service based on his review of the treatment records which fully support his conclusions. Additionally, he provided a supporting rationale which explained that the Veteran's cold exposure while stationed in Korea would not have predisposed him to cervical neck arthritis and that there was no evidence indicating that his spine was abnormal at the time of separation. Here, the opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, supra. The Veteran has had ample opportunity to supplement the record with a medical opinion against the finding of the May 2017 VHA expert, but has not done so. The Board finds the VHA examiner's opinion is the most competent and probative evidence of record addressing the question of whether his current neck disability is related to service. The Board adds that the evidence is against a finding that a chronic neck disability existed in service, or manifested within the Veteran's first post-service year. The Veteran's assertions of continuity of symptoms are outweighed by the fact that he had a "normal" clinical evaluation of his lower extremities upon separation from service in 1957. Moreover, his has provided conflicting accounts as to when his pain started, specifically denying neck pain in service at the June 2016 VA examination, and noting post-service onset while serving as a mail carrier. For the foregoing reasons, the Board must deny the claim for service connection for a neck disability. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER 1. Entitlement to service connection for a bilateral knee disability, to include arthritis, is denied. 2. Entitlement to service connection for a neck disability, to include arthritis, is denied. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs