Citation Nr: 1801825 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-14 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a back disability (claimed as a neck and back disability). 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This claim was previously before the Board in January 2016, at which time it was remanded for additional development. FINDINGS OF FACT 1. The Veteran's back disability is not related to any injury, disease, or event incurred in service, nor was arthritis of the spine shown within his first post-service year. 2. The Veteran's bilateral knee disability is not related to any injury, disease, or event incurred in service. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1154, 5103, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. A bilateral knee disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); 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)). Service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If 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," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 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, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Back Disability The Veteran asserted that he had back problems and degenerative arthritis since military service. He believed that it started because of repetitive marching and running in combat boots every day during basic training. A review of his service treatment records shows no treatment for any back or neck complaints in service. At the March 2016 VA back examination, the examiner noted diagnoses of intervertebral disc syndrome and lumbar degenerative disc disease at L1-2 and L4-5. Thoracic spine testing showed no evidence of a fracture. There was normal alignment with no subluxation and no significant degenerative changes. Lumbosacral spine testing also showed no evidence of a fracture, as well as normal alignment with no subluxation. Based on the results of the examination, the examiner found that it was less likely than not that the Veteran's lumbar degenerative disc disease was related to service. The examiner found that there was no evidence of an in-service event to cause this condition, which happened over time. Moreover, the examiner indicated that medical literature did not support that someone who only ran and exercised during boot camp would have the type of disc degeneration found. The examiner found that the Veteran's post-service employment on a railroad was the most likely cause of his lumbar degenerative disc disease, as the Veteran indicated he had many falls and did a lot of heavy lifting at his job. The Veteran received a VA cervical spine examination in May 2016, and the examiner noted diagnoses of degenerative disc disease at C4, C5 and C6 and degenerative arthropathy at C4, C5, and C6 with stenosis. Both were diagnosed in 1994. The Veteran stated that he worked for a railroad as a machinist for 40 years. The examiner found that both the entrance and separation examinations were negative for any neck complaints, and service treatment records did not show any injuries. During service, the Veteran worked in Base Supply. The examiner opined that it was less likely than not that the Veteran's current cervical spine disability was incurred in or caused by service. There were no complaints of a neck condition until 1994, and the service treatment records, including the separation examination, did not support any cervical disability related to service. The examiner concluded that it was more likely that the Veteran's back and neck disabilities were due to his long employment on a railroad or other post-service repetitive injury. As an initial matter, the Board has determined that the 38 C.F.R. § 3.303(b) presumptions have not been met. Following service, the first medical evidence of degenerative arthritis did not appear until 1994, when the Veteran was diagnosed with cervical spine degenerative disc disease and degenerative arthropathy. As such, there is no medical evidence showing that arthritis was diagnosed for VA purposes either during service or within a year of service. Likewise, degenerative arthritis has not been continuous since service, as it was not shown by x-ray at his separation physical or for many years thereafter. Nevertheless, service connection may be granted if the evidence establishes a nexus between degenerative arthritis and the Veteran's military service. The Board finds the March 2016 and May 2016 VA examinations the most probative evidence of record. The examiners findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's back disabilities and their lack of connection to service. Although the examiner confirmed that the Veteran did have lumbar spine and cervical spine disabilities, she provided opinions explaining why it was less likely than not that the Veteran's disabilities were the result of his military service. The Board considered the Veteran's statements that he has had arthritis since service, and it was the result of marching and running in combat boots during basic training. However, the Veteran is not competent to offer such an opinion as he does not have the requisite medical expertise to provide a link between his currently diagnosis neck and back disabilities to the marching and running in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The examiner, however, was fully apprised of the Veteran's in-service experiences and contentions, and provided an adequate rational for the negative opinion. In sum, the most probative evidence of record-the 2016 VA opinions-show no link between his current neck and back disabilities and an event, injury, or disease in service. Therefore, the criteria for service connection have not been met and the Veteran's claim is denied. Bilateral Knee Disability The Veteran contends that his bilateral knee disabilities are related to his military service. He believed that it started because of repetitive marching and running in combat boots every day during basic training. A review of his service treatment records shows no complaints of, or treatment for, bilateral knee problems. The Veteran received private treatment for his knees in May 2009. He complained of bilateral knee pain and lower leg pain, which had been ongoing for approximately one month. The Veteran had begun a running program and had intense pain in both his knees and lower legs. He stopped running for a week and a half, and the pain was getting worse. An x-ray examination revealed minor narrowing of the medial joint space, but there were otherwise minimal arthritic changes. The examiner diagnosed the Veteran with bilateral knee pain, most probably due to degenerative meniscal tears. A follow-up appointment several weeks later revealed a stress fracture along the medial tibial plateau and medial meniscal tear. There was also an old ACL strain noted. On his April 2012 notice of disagreement, the Veteran stated that his bilateral knee condition also started during basic training while marching on concrete pads and running every day in combat boots. He believed that daily repetitive running without proper footwear was the beginning of his knee problems. The Veteran received a VA knee and lower leg examination in March 2016, and the examiner noted diagnoses of left knee strain from 2009, left knee meniscal tear from 2009, bilateral shin splints from 2009, and bilateral degeneration of the medial meniscus from 2016. The examiner noted the Veteran's treatment in May 2009 for bilateral knee pain due to starting a jogging program, as well as the Veteran's post-service employment history on the railroad. As a result of the examination, the examiner opined that it was less likely than not that the Veteran's knee disabilities were related to service. The examiner found that there was no supporting evidence for a chronic knee condition. She stated that May 2009 treatment was for an acute process caused by jogging, and there was not enough evidence to conclude that the Veteran's knee disabilities occurred in service. Rather, the examiner found that it was more likely that the Veteran's post-service employment, where he did heavy lifting, was the cause of his bilateral knee disabilities. Furthermore, the examiner opined that she could not opine on the old ACL sprain found on the May 2009 MRI, as the Veteran had no recollection of a specific knee injury in the past. She also concluded that the shin splints had healed and were an acute injury from May 2009 due to the jogging. Here, the Board finds that the most probative evidence of record does not reveal a showing of a relationship between the Veteran's bilateral knee disability and his period of service. The principal evidence weighing against the Veteran's claim is the March 2016 VA examination. Although the examiner confirmed that the Veteran did have a bilateral knee disability, she provided an opinion explaining exactly why it was less likely than not related to his military service. In providing the opinion, the examiner was fully apprised of the Veteran's in-service experiences and contentions, and provided an adequate rationale for the negative opinion. More important, the examiner provided an alternative etiology for the onset of the Veteran's disability. Again, the Board acknowledges the Veteran's contentions that in-service marching and running caused his current bilateral knee disability. Although he is competent to allege bilateral knee pain during and since service, he is not competent to link his current bilateral knee disability to an event, injury, or disease in service. In sum, the most probative evidence of record shows no nexus between his current bilateral knee disability and his military service. Therefore, the criteria for service connection have not been met and the Veteran's claim is denied. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs