Citation Nr: 1800380 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-23 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability, to include degenerative disc disease and degenerative arthritis of the lumbar spine. 2. Entitlement to service connection for bilateral knee disabilities, to include bilateral knee strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Air Force from February 1968 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran appeared and testified at a hearing held before the undersigned Veteran's Law Judge in September 2013. A transcript of this hearing has been associated with the Veteran's claims file. This appeal was previously remanded by the Board in January 2014 in order to obtain additional records from the Social Security Administration (SSA) and to afford the Veteran an additional VA medical examination. Unfortunately, SSA replied that no such records existed and any further efforts to obtain them would be future. The Veteran attended a VA examination in April 2014 pursuant to the Board's remand directives. The Board again remanded this appeal in March 2017 to obtain an addendum opinion clarifying the etiology of the Veteran's bilateral knee and back disorders. VA obtained such an opinion and associated it with the Veteran's claims file in April 2017. Accordingly, the Board is satisfied that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's low back disability did not have its onset in service and is not otherwise etiologically related to service. 2. The Veteran's bilateral knee disabilities did not have their onset in service and are not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral knee disabilities have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection - Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. II. Service Connection - Analysis At the outset, the Board finds that the Veteran has a current low back disability, as evidenced by the April 2014 VA medical examination report's diagnosis of degenerative arthritis of the spine. However, the record is not entirely clear with respect to the question of whether the Veteran has a current disability in his knees. For instance, although the clinician who completed a January 2010 VA medical examination reported a diagnosis of bilateral knee strain, she also indicated that the claims file had no medical record of a knee condition. The Veteran's knees were also examined at the April 2014 VA medical examination. At that time, the examiner indicated that the Veteran had a 1969 diagnosis of bilateral knee strain. However, the clinician also referred only to the Veteran's "current bilateral knee discomfort," rather than any current diagnosis of a knee strain or any other disability. Likewise, a statement by the Veteran's treating physician from October 2013 refers only to the Veteran's "knee pain." For VA purposes, a disability is "the impairment of earning capacity" resulting from "a disease, injury, or defect." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Pain alone, without an underlying diagnosed medical condition, disease, or injury, does not constitute a disability on which claim of service connection may be based. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Nevertheless, due to the ambiguity in the January 2010 VA medical report regarding whether or not the Veteran has a current knee strain and the March 2015 statement by a treating VA physician that the Veteran had evident arthritic deformity despite reports of normal x-ray imaging, the Board will resolve all reasonable doubt in the Veteran's favor and find that the Veteran has current bilateral knee disabilities. The Veteran has repeatedly asserted that his back and knee disabilities were caused by an injury he sustained while he was operating a bulldozer during active duty service. At the September 2013 hearing, the Veteran testified that he sought treatment after service for his symptoms and that he has continued to receive regular treatment for both knee and back symptoms since service. A review of the Veteran's service treatment records appears to corroborate the Veteran's testimony regarding an in-service injury to his back. Specifically, a clinical note from January 1970 included a diagnosis of lumbosacral strain. X-ray images from that period, however, are somewhat contradictory. For instance, images taken in January 1970 reportedly showed a bilateral pars interarticularis defect at L5, but x-ray images taken the following week showed such a defect only on the left side. Despite a diagnosis of L4-5 spondylolisthesis in a service treatment note from August 1970, x-ray images taken at that time were reportedly negative. The Veteran reportedly stated to his treating clinician that his back was occasionally bothering him after an accident with heavy equipment, but the impression at that time was of no acute injury. Notably, an additional service treatment record in August 1970 from another treating clinician explicitly indicated that there was no evidence of spondylolisthesis. That clinician also reported that the Veteran had normal pars interarticularis. Likewise, in a follow-up treatment note from September 1970, the Veteran was found to have no organic problem, and a radiologic consultant reported that the Veteran had no signs of pars interarticularis defect or other abnormality in October 1970. The Veteran was found to have a diagnosis of back strain with good recovery at that time and was found to be qualified for normal duty without limitations. By the time of his March 1971 discharge examination, the Veteran again reported back problems. However, the examiner reported that the Veteran had no complications or sequelae of a back injury and a physical examination of the Veteran's spine was normal. In addition to the numerous treatment records relating to the Veteran's back symptoms, the service treatment records also include a May 1969 clinical note regarding an injury to the Veteran's left knee, with an impression of a patella contusion. Aside from this isolated treatment note, the Veteran's service treatment records are otherwise silent for any report of symptoms in the left knee and these records are devoid of any record of the Veteran seeking treatment for his right knee. At his separation examination in March 1971, the evaluation of his musculoskeletal system revealed normal findings. Although the record contains evidence of current disabilities in the Veteran's knees and back and treatment relating to a heavy equipment injury while in service, the Board finds that the weight of the probative, credible, and competent evidence weighs against the proposition that the Veteran's current back or knee disabilities arose in or were otherwise caused by the Veteran's active duty service. The Board recognizes that the Veteran is certainly permitted to report the circumstances of the bulldozer accident that he asserts caused his current back and knee symptoms and he is also permitted to report to the observable symptoms of knee and back pain and the course of these symptoms. However, the record does not indicate that he possesses the medical knowledge or training necessary to provide a competent opinion regarding the medically complex question of the etiology of his current knee and back disabilities. Moreover, the record contains inconsistencies with respect to his reports of the onset and persistence of symptoms in his back and knees. For instance, in a VA treatment note from November 2009, the Veteran reported at least a 30-year history of back pain that he reported began during in-service equipment operation and he stated to a treating VA clinician in May 2015 that his back pain has gradually worsened since his in-service injury. However, in a clinical record from October 2015, the Veteran reported that he had only had two episodes of back pain until 2000. Similarly, the Veteran's treating physician submitted a statement in March 2015 indicating that the Veteran had reported that his in-service injury initiated his knee pain and that, since this event, the Veteran never returned to baseline. In contrast to this timeline, at the January 2010 VA medical examination, the Veteran reportedly indicated that his knees ached without injury to the knees, that symptoms first started in the right knee, and that his symptoms began in 1990, rather than during service. The Board finds that the inconsistencies between these statements reduces the credibility and probative weight of the Veteran's current assertion that his symptoms of back and knee pain began during service and have persisted ever since. The record also contains statements from October 2013 and March 2015 from a treating VA physician. In the earlier statement, this physician reported that the Veteran had chronic low back and knee pain from his "service years" and that it was more likely than not from the Veteran's history to have initiated at that time. In March 2015, this physician reported that he had examined the Veteran in February 2015 and stated that the Veteran also had "evident arthritic deformity" of the knee. In this letter, this clinician also indicated that the Veteran had reported an incident in service that initiated these complaints and stated that, since this event, he had not returned to baseline. The physician ultimately stated that the examination and history were consistent and that it was more likely than not "from his history" to have initiated in service. As a physician, the Veteran's treating clinician is competent to provide an opinion regarding the cause and onset of the Veteran's current knee and back disabilities. Although he indicated that the Veteran's examination was consistent with the Veteran's reports of his medical history, the record includes contradictory statements regarding the onset and course of the Veteran's back and knee symptoms, as explained above. Accordingly, the opinion appears to rest largely on the very same lay statements that the Board does not find to be credible. The Board must therefore find that this physician's opinion is not particularly persuasive and affords it little probative weight. Greater weight is given to the opinions of the physician who performed the Veteran's April 2014 VA medical examination. After reviewing the Veteran's claims file, taking a medical history, and personally examining the Veteran, this clinician ultimately opined that it was less likely than not that either a bilateral knee disability or a back disability was caused by or a result of military service. This physician noted that the service medical records failed to show any permanent residual or chronic knee or back disability, that the separation physical did not identify any disability of the bilateral knee, and that the Veteran was able to work for 19 years as a custodian after he was discharged from active duty. Pursuant to the Board's March 2017 remand, VA obtained an addendum opinion from this examiner to clarify the rationale. In April 2017, the VA examiner again reported that it was less likely than not that the Veteran's back and knee disabilities were incurred in or caused by the Veteran's service. She acknowledged that the Veteran's service records included evidence of an injury involving a bulldozer, but stated that the subsequent service treatment records failed to show any evidence of complications or sequela from the incident. In support of her opinion, this VA physician also stated that the Veteran was medically qualified to complete his entire tour and was subsequently able to work for 19 years as a custodian. In contrast to the opinion by the Veteran's treating physician, the VA examiner cited to relevant treatment records and provided a detailed and persuasive explanation for her opinion. She is also competent to provide an opinion on the questions of when the Veteran's knee and back disabilities arose and whether they have any etiological relationship with his active duty service. For these reasons, and as her rationale appears to have substantial evidentiary support in the record, the Board finds that her opinion is entitled to substantial weight. Ultimately, the Board finds that the preponderance of the probative, credible, and competent evidence indicates that the Veteran's current back and knee disabilities neither incurred in nor are etiologically related to the Veteran's active -duty service. As such, there is no reasonable doubt to resolve with respect to the onset or etiology of the Veteran's current musculoskeletal disabilities. The Board has also considered whether service connection may be presumptively granted pursuant to 38 U.S.C. § 3.307. However, the Board does not find that the Veteran's current assertions regarding the continuity of his symptoms to be credible due to the inconsistencies regarding the course of the Veteran's symptoms that are noted above. As the record does not contain any competent and credible evidence indicating that the Veteran's knee or back disabilities arose in his service or the year that followed, the Board finds that the criteria for presumptive service connection have not been satisfied. Accordingly, his claim must be denied. III. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Here, the Veteran was provided adequate notice in correspondence from September 2009. Pursuant to its duty to assist the Veteran, a review of the claims file indicates that all relevant service personnel and treatment records have been associated with the Veteran's claims file. Identified private treatment records have also been associated with the Veteran's claims file and, as indicated above, VA has attempted to secure potentially relevant disability records from SSA. However, in a March 2014 statement, an official from SSA reported that no records existed and that further efforts to obtain them would be futile. The Veteran was also afforded several VA examinations during the course of the instant appeal, including in January 2010 and April 2014. In its March 2017 remand, the Board found that the most recent VA examination was inadequate and directed the RO to obtain a clarifying addendum opinion. Pursuant to this directive, VA associated an April 2017 opinion with the claims file. The clinician who provided this opinion reviewed the Veteran's claims file, provided a descriptive summary of the relevant medical history and provided a clear and logical rationale for her opinion. Accordingly, the Board is satisfied that this addendum opinion is adequate and that VA has satisfied its duty to assist the Veteran by affording the Veteran two VA medical examinations and securing a clarifying medical opinion. ORDER Service connection for a low back disability, to include degenerative disc disease and degenerative arthritis of the lumbar spine, is denied. Service connection for bilateral knee disabilities, to include bilateral knee strain, is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs