Citation Nr: 1800759 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 05-03 260A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Smart, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 1992, including service in the Southwest Asia Theater of Operations in 1991. He also served in the U.S. Naval Reserves. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2007, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Houston, Texas. A transcript of that hearing is of record. In July 2007, July 2010, July 2012, and March 2015, the Board, in relevant part, remanded the appeal for further development. In a December 2015 the Board denied entitlement to service connection for a lumbar spine disability and bilateral knee disability. The Veteran appealed the December 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2017 Memorandum Decision, the Court set aside the December 2015 Board decision regarding the denial of service connection for a lumbar spine disability and bilateral knee disability. The Board notes that after the July 2015 supplemental statement of the case, VA treatment records dated March 2016 to July 2017 were added to the claims file. However, these treatment records contain information that is duplicative or not relevant to the issues before the Board. Therefore, issuance of a new supplemental statement of the case is not needed. This appeal was processed using the Veterans Benefits Management System (VBMS). A review of the Veteran's Legacy Content Manager Documents file reveals VA treatment records dated June 2015 to January 2017. FINDINGS OF FACT The Veteran had injury-related bilateral knee and low back pain during service, diagnosed as strain; but he does not have a current knee or low back disorder, and his present knee and low back pain is not due to a qualifying chronic disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. § 3.303, 3.317 (2017). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. § 3.303, 3.317 (2017). 3. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. § 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Here, neither the Veteran nor his representative has raised any issues with the duty to notify or 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). The Board also finds that the RO has substantially complied with the July 2007, July 2010, July 2012, and March 2015 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Analysis The Veteran contends that he has a lumbar spine disability and a bilateral knee disability that are related to his active military service. The Veteran also contends that his symptoms are a qualifying chronic disability under 38 C.F.R. § 3.317 (2017). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Qualifying chronic disabilities include: (1) an undiagnosed illness; and (2) a medically unexplained chronic Multi-Symptom illness such as (but not limited to) chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2). Turning to the evidence of record, the Veteran's DD214 shows that he is in receipt of the Southwest Asia Service Medal. Therefore, the Veteran is a Persian Gulf Veteran for purposes of 38 C.F.R. § 3.317. An August 1989 service treatment record shows that the Veteran complained of his right knee "giving out". A May 1990 service treatment record shows that the Veteran reported a history of a left knee injury in May 1990. Another May 1990 service treatment record indicates a finding of right scoliosis in the thoracic spine at levels T3-8. The May 1992 separation examination shows that clinical evaluation of the spine and lower extremities was normal. The May 1992 separation report of medical history shows that the Veteran denied recurrent back pain and trick or locked knee. A September 1995 treatment record notes that the Veteran twisted his right knee while holding a "steadying line." He was assessed with a mild sprain and found physically qualified for release from ACDUTRA. An October 1995 treatment record shows that the Veteran complained of low back and right knee pain following a work-related injury. The physician diagnosed muscle strain thoracolumbar strain. A September 2000 treatment record from a naval facility shows the Veteran strained his low back working on an oil boom. A September 2002 record shows that the Veteran had low back pain after he guided cargo into a ship. A February 2004 naval reserve personnel record shows that the Veteran was determined to be unfit for mobilization to active duty due to recurrent low back pain. VA treatment records dating as early as July 1996 show the Veteran's intermittent complaints of bilateral knee pain and his histories relating his knee pain to service. July 1996 x-ray studies of his knees were normal except bone densities projected over medial femoral condyle thought to be a "small bone island." Physical examinations were frequently normal as were subsequent X-ray studies. The diagnoses often included arthralgia. A June 2004 examination of the knees, while showing no tenderness, did reveal some crepitus in both knees. VA treatment records also show that the Veteran complained of intermittent back pain which he attributed to a November 1991 accident in service. X-ray studies of the lumbar spine beginning in July 1996 are normal. Physical examinations were also frequently normal. However, an August 1996 physical examination revealed muscle spasm in the paraspinal muscles. The diagnosis was intermittent arthralgia and muscle pain. The examiner opined that there was no evidence to support a diagnosis of spondylosis. Subsequent treatment records show ongoing complaints with examinations revealing no evidence of tenderness or limitation of motion. The Veteran was provided a C&P Gulf War Guidelines examination in September 2004. The examiner noted review of the claims file. The Veteran reported that since his discharge from the military he has been continuing to have pain in both knees. He reported that the problem started with a basketball injury in 1989. The Veteran reported that at that time he was treated with Motrin and ice. The Veteran also complained of chronic low back pain. He reported that he was seen for this several times in the service. The examiner diagnosed musculoskeletal problems. The Veteran was afforded a VA C&P examination in August 2012. The Veteran reported that in regards to his back he currently gets tightness, does not do heavy lifting, limits flexion and takes Motrin that helps. The Veteran reported that in regards to his knees he has weakness, feels that he has swelling in anterior knee, no instability and locking. The Veteran reported that he takes Motrin that helps. The examiner concluded that the Veteran had normal lumbar spine and normal knees. The examiner noted that imaging studies had been performed and no arthritis was documented in the back and no degenerative or traumatic arthritis was noted in the knees. There was also no x-ray evidence of patellar subluxation. The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that there were some instances of acute back strain without sequelae in October 1995, May 1991 and September 2000 and several others. The examiner explained that there did not appear to be a chronic problem. The examiner explained that the Veteran's current exam and x-rays were entirely normal. The examiner explained that the Veteran has a normal lumbar spine without evidence consistent with chronic strain or any other chronic back problems. The examiner noted that the Veteran was seen in May 1991 for a left knee strain with normal exam and was cleared for PT. The examiner noted that the Veteran was seen in September 1995 for "twist" of the right knee with normal exam. The examiner explained that the Veteran had a normal exam as well as normal x-rays. The examiner explained that there was no evidence of a bilateral knee disability. The Veteran was afforded another VA C&P examination in July 2015. The examiner concluded that the Veteran had a normal exam of the thoracolumbar spine. The examiner noted that the Veteran was a poor historian. The examiner noted that subjective pain and exaggeration of symptoms self-expressed by Veteran were disproportionate and inconsistent with objective findings obtained by the medical examiner. The examiner also concluded that the Veteran had a normal knee examination. The examiner noted no change from August 2012 x-rays or exam. The examiner noted normal exam and normal x-rays. The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted review of the VBMS e-folder and remand instructions. The examiner stated "to reiterate: no mention/reference to symptom complex characteristic of multisystem disease". The examiner provided a review of the evidence outline above. The examiner explained considering multiple denials of pain well documented on serial exams, coupled with repetitive assertions of good health, and lack of documented follow-up from period of separation from active duty to present, conditions have not been presented consistently and believably for review. The examiner explained that based upon records available, it was less likely than not that the complaint of back and knee condition is service connected. The examiner explained that current examination and x-ray studies are normal, as were previous x-rays of spine and bilateral knees. The examiner explained there is no medical or biomedical evidence of chronic or on-going condition associated with and/or aggravated by Veteran's military service. Based on the above, the Board finds that the evidence of record is against a finding that the Veteran has a current diagnosis of a lumbar spine disability, bilateral knee disability or medically unexplained chronic Multi-Symptom illness. The Board acknowledges the Veteran's lay assertions that he has a current diagnosis of the lumbar spine and bilateral knees and/or an undiagnosed illness, or a medically unexplained chronic Multi-Symptom illness. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a disability of the musculoskeletal system and determining if the Veteran's symptoms are a qualifying chronic disability, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset of symptoms and personal observations, any opinion regarding the nature and etiology of symptoms requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that he has a current disability of the lumbar spine and bilateral knees or an undiagnosed illness, or a medically unexplained chronic Multi-Symptom illness. Instead, the Board finds that August 2012 and July 2015 VA examination reports, when taken together, to be highly probative to the issue at hand. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the August 2012 and July 2015 examinations and opinions were provided by VA medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinions are shown to have been based on physical examination of the Veteran, a review of the Veteran's record and are accompanied by a sufficient explanation. The opinions also reconcile the Veteran's treatment for sprains and strains with why the Veteran does not have current diagnoses of the lumbar spine and bilateral knees. The July 2015 VA examiner also explicitly stated "to reiterate: no mention/reference to symptom complex characteristic of multisystem disease". Furthermore, there is no contrary medical opinion of record. The Board thus finds that the August 2012 and July 2015 VA examination reports, when taken together, are dispositive of whether the Veteran has a current diagnosis of a lumbar spine disability, bilateral knee disability or medically unexplained chronic Multi-system illness. While pain may establish an undiagnosed illness that causes a qualifying chronic disability, the medical professionals addressing this have found no such disability, and the Veteran is not competent to establish any formal diagnosis. The Board also notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitutes a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). 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. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs