Citation Nr: 1756857 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-04 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for spondylolisthesis of the lumbar spine (low back disability), to include as secondary to a service-connected bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1985 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was initially remanded by the Board in April 2015. In February 2017, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in August 2017 and the Board now proceeds with adjudication of the appeal. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran's low back disability is related to active duty service or was caused or aggravated by the service-connected bilateral knee disability. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include as secondary to the service-connected bilateral knee disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341(1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year from date of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under section 3.310 of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his current low back disability was caused or aggravated by service, or is secondary to his service-connected bilateral knee disability. Specifically, he claims that the symptoms of his lumbar spine disorder manifested after falling from a roof due to instability in his knees. Service treatment records dated February 1988 show complaints of back pain accompanied by vomiting, with no diagnosis of a back condition. The Veteran reported no actual trauma to his back, and the assessment was nephritis. Similarly, in February 1993, the Veteran complained of back pain around the kidneys, which was diagnosed as viral syndrome. The Board acknowledges the Veteran's November 1991 in-service complaint of back pain and report of a pipe falling on him. No sign of swelling or actual injury was noted, however. A service treatment record dated the following month contains no further complaints of back pain. The Veteran's separation examination indicated only knee pain with no other medical complaints. VA treatment records post-service indicate a history of treatment for chronic lower back pain beginning at least six years after the Veteran's separation from service. As arthritis is not shown to be present during service or in the year following separation from service, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). A March 2004 treatment record shows the Veteran reported a six-year history of lower back pain after a fall from a roof. September through December 2006 VA treatment records continue to show multiple complaints of lower back pain due to the same incident while employed as a roofer. In a February 2011 VA treatment record, the Veteran first asserted that his spondylolisthesis of the lumbar spine was caused when his knees "gave out" in 2000, causing his fall from a roof. The Board holds that the evidence is against a finding that the Veteran's low back disability was incurred in or related to service, or that it manifested within one year of separation from service. While the Board acknowledges the Veteran's in-service complaint of back pain and that a pipe fell on him, no back pain was reported by the Veteran until many years after service. Except for the October 2017 statement of the Veteran's representative that the Veteran's back disability began in service and was aggravated by his fall from a roof, the Veteran has consistently only asserted the theory that he injured his back only after his fall from a roof sometime between 1998 and 2000. Moreover, a medical specialist's opinion was obtained from VHA in August 2017. The specialist opined that the Veteran's low back disability could not be attributed to any events or injuries in service as documented in his service treatment records, and that it was more plausible to attribute the disorder in whole or in large part to the fall that occurred approximately eight years after discharge. Therefore, the Board finds that he evidence is against a finding that service connection is warranted on a direct basis. Regarding the Veteran's secondary service connection theory that his back pain was caused when he fell from a roof after his knees "gave out," a VA examination was first afforded to the Veteran in December 2012 to address the claim. The examiner opined that the Veteran's spondylolisthesis of the lumbar spine was not due to or the result of his service-connected bilateral knee disability because there was no gait or orthopedic literature finding back spondylolisthesis was caused by a knee disability. In response to an April 2015 remand, the Veteran was provided a VA Addendum Opinion in September 2015. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's spondylolisthesis of the lumbar spine was aggravated by a service-connected knee condition, because there was no evidence in the Veteran's history to confirm that his knees "gave out," rather, the evidence demonstrated that a lumbar spine condition existed prior to his fall and therefore was less likely than not caused by the fall. The examiner also explained that there was no definitive evidence that the fall aggravated the back disability based on a review of the medical literature and the Veteran's medical history, and that "[a] condition of the bilateral knees would not biomechanically nor pathophysiologically result in a condition of the lumbar spine." As noted above, the Board sought the opinion of a VHA medical specialist in February 2015. In his August 2015 response, the specialist noted that, first, the Veteran's chondromalacia patellae was "a diagnosis of convenience." While chondromalacia has long been supposed to represent degeneration of the posterior cartilage of the patella, there is actually no evidence for such cartilaginous involvement, and the diagnosis is used for nonspecific anterior knee pain. Also, even if patellar cartilage degeneration were present, the specialist stated that this would not involve the knee joint itself as it is external to the joint capsule. Moreover, there is evidence that the Veteran's knee joints were anatomically normal for at least several years after discharge from service, noting a February 1995 radiograph showing no evidence of bony abnormality involving either knee. No significant change was noted in imaging dated September 1997. As such, and although the specialist did acknowledge that the Veteran's back disability was likely caused by the Veteran's asserted fall from a roof, he opined that it was less likely than not that the Veteran's service-connected knee disorders caused or permanently aggravated his low back disability, as chondromalacia patellae would not have been expected to cause knee instability, and that it was also less likely than not that the Veterans chondromalacia patella progressed to degenerative disease of the knee joints at the time of the fall as it was not diagnosed until 2005. Based on the foregoing, and as there is no other medical evidence that refutes the above opinions that there is no etiological relationship between the Veteran's current back disability and his service-connected knee disabilities, the Board also finds the evidence is against a finding that service connection is warranted on a secondary basis. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has reported experiencing back pain after knee instability caused a fall from a roof. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the etiology of a low back disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current low back disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent the Veteran asserts he fell from a roof as a result of knee instability, the Board finds these statements to be lacking credibility. As noted by the VHA medical specialist after reviewing the history, clinical findings, and diagnoses related to the knees, the Veteran's knee disability would not have been expected to cause knee instability. The VHA medical specialist's opinion is further supported by the findings on VA examination in September 1998, close in time to the incident in question, at which time the examiner specifically noted that there was no current evidence of instability of the knees. In sum, the Board finds the preponderance of the evidence is against a grant of service connection for spondylolisthesis of the lumbar spine, to include as secondary to the service-connected bilateral knee disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable in the instant appeal, and service connection must be denied. See 38 U.S.C. § 5107(b); Gilbert, at 55-56. ORDER Service connection for spondylolisthesis of the lumbar spine, to include as secondary to the service-connected bilateral knee disability, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs