Citation Nr: 1802840 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 16-25 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1964 to January 1966. These matters come before the Board of Veterans' Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This rating decision, in part, denied service connection for left knee and back disabilities. In his May 2016 VA Form 9, the Veteran requested a Video Conference Hearing before the Board. However, in August 2016 he withdrew this request. The Veteran's December 2017 motion to advance his appeal on the Board's docket due to age is granted. 38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.900(c) (2017). The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's current back disability, to include degenerative arthritis, degenerative disc disease, and lumbar radiculopathy, was not incurred in service, is not related to any event in service, and arthritis was not manifested within one year after service separation. CONCLUSION OF LAW Service connection for a back disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION A. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg); (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. I. Factual Background and Analysis In the November 1963 pre-induction medical examination, the Veteran's clinical evaluation was normal. In the pre-induction report of medical history from this time, the Veteran marked "no" for swollen or painful joints; arthritis or rheumatism; bone, joint, or other deformity; and wearing a brace or back support. In January 1965, the Veteran was in involved in a head on motor vehicle collision. He was initially hospitalized for several days at a private hospital. Records from the treating physician at that time only note treatment for a dislocated left hip and fractures of the face and jaw. Three days after the accident he was transferred to Madigan General Hospital and he was discharged the following month. Records from Madigan General Hospital again only note that the automobile accident resulted in a left his dislocation and multiple fractures of the maxilla, nasal bone and left orbital ridge. The records specifically noted that the veteran had "no other specific complaints." A review of systems was noted to be "[e]ssentially negative except as noted in the [history of present illness]." Physical examination specifically revealed an extremity examination within normal limits except for the left him and specifically noted a "neurological examination was within normal limits" and "[t]he remainder of the examination was within normal limits." An August 1965 STR reported that the Veteran was thrown from a horse and walked away afterwards. He complained of progressively worsening mid-to-low back pain. He was found to have a large amount of tenderness over the sacrum. In the November 1965 separation examination, the Veteran was found to have a normal spine. In a report of medical history from this time, the Veteran marked "no" for swollen or painful joints; arthritis or rheumatism; bone, joint, or other deformity. He marked "yes" for wearing a brace or back support. Significantly, the Madigan General Hospital records showed that in February 1965 the Veteran received a brace for his hip. In January 1966, the Veteran provided a statement that since the October 1965 medical examination there had been no change in his medical condition. In November 2014 the Veteran claimed that he had back pain due to an in-service motor vehicle accident that occurred in January 1965. In the September 2015 notice of disagreement, the Veteran claimed that he sometimes experienced a shooting pain that emanated from his lower back to his left hip and leg when he "moved wrong" or sat in the "wrong position." He reported that "over the years" he had a lot of physical therapy to try and fix the problem. Notably, the Veteran filed the above claims on a VA Form 21-526EZ (Fully Developed Claim) whereby he certified that he received notice that explained the evidence necessary to substantiate a claim for a VA disability compensation claim. The Veteran did not provide such evidence to VA, nor did he provide information that would allow VA to assist him in obtaining same. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist requires VA to make reasonable efforts to obtain relevant evidence to substantiate a claimant's benefits claim; however, this duty is not a one way street). The record does include VA treatment records reflecting treatment for the back. As such, VA's duty to assist is met. In the April 2016 VA spine examination, the Veteran reported that his back condition began in 1970. He experienced shooting pain from the lower back down to the hip and leg. The Veteran was diagnosed with degenerative arthritis of the spine, multilevel degenerative disc disease of the lumbar spine that was most prominent at L2 to L3, and lumbar radiculopathy. The examiner specifically noted that the Veteran's claims file, military service treatment records, and military separation examination had been reviewed. Upon consideration of the evidence, the examiner opined that the Veteran's spine disabilities were less likely than not related to service. He noted that the Veteran's STRs showed that he was thrown off a horse in 1965 and that they only showed one medical visit for this incident. The examiner opined that there was not enough evidence in the Veteran's STRs to link a current back condition to the incident where he fell from a horse. In statements from May 2016, the Veteran's daughter reported that she was 40 years old and that the Veteran experienced increasing back pain for as long as she could remember. His wife reported that the he had complained of back pain for 47 years, or beginning in approximately 1969, several years after service. Thus, neither the Veteran's wife nor his daughter observed the Veteran in service or for at least several years thereafter. Upon consideration of the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran's current back disabilities are related to his service. The available medical evidence, including post-service treatment records, shows no complaints, symptoms, findings or diagnoses associated with arthritis of the spine, degenerative disc disease, and lumbar radiculopathy until several decades after service. Further, the competent and credible medical VA medical opinion weighs against the existence of a nexus between the Veteran's current back disabilities and service. As an initial matter, the Board notes that the Veteran is competent to describe lay observable symptoms of back pain, and the circumstances surrounding same. However, the Board finds that to the extent that the Veteran claims that he has had back pain since the motor vehicle accident during service, such statements lack credibility as they are inconsistent with his contemporaneous reports that he did not have complaints following the accident outside of his left hip and facial fractures. Further, any assertions of back injury at the time of the motor vehicle accident also lack credibility as they are inconsistent with the contemporaneous medical evidence showing review of systems, extremity examination (excepting the injured hip), and neurological assessments were normal following the accident. The only reference in the STRs to back complaints specifically was in connection with riding a horse a few months after the motor vehicle accident. The VA examiner specifically addressed these records and found that the Veteran's current back problems could not be related to the incident because there was not enough evidence in the treatment records. The examiner specifically and accurately noted that there was only a single medical visit for that incident. Further, and significantly, at the time the Veteran made his November 2014 claim, approximately 50 years had passed since service. Importantly, in making this finding the Board is not implying that the Veteran had any intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred five decades ago. This is consistent with the law's view of memory in general. See generally, Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, a statement may lack credibility because of faulty memory) (cited by C.J. Kasold in Wohlwend v. Shinseki, No. 08-356, 2014 WL 1931182 at * 3 (May 15, 2014)). Service connection is not warranted on the basis that a back disability began in service. Notably, the competent and credible evidence shows that at separation the Veteran had a normal spine, and that he denied having any swollen or painful joints; arthritis or rheumatism; bone, joint, or other deformity. Although he indicated that he wore a brace or back support, the record is clear that the Veteran was given a left leg/hip brace following his motor vehicle accident. In January 1966, the Veteran stated that there had been no change in his medical condition since the October 1965 medical examination. The Board understands this statement was meant to refer to the November 1965 separation examination, as this was the only separation examination within the Veteran's STRs in proximity to this time. As such, service connection for a back disability on the basis that such disability became manifest in service and persisted is not warranted. As the Veteran's spine arthritis was not shown to have been manifested in the first post-service year, but instead approximately 50 years later, the chronic disease presumption provisions of 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. As such, service connection for a back disability is not warranted on this basis. Further, given that the Veteran has been diagnosed with spine arthritis, the Board has considered whether service connection is warranted on the basis of continuity of symptomatology. The Board finds that it is not. Notably, at separation the Veteran was not found to have, nor did he complain of, any back symptoms. At the April 2016 VA examination, where the record first demonstrates a diagnosis of degenerative arthritis of the spine, the Veteran reported that his back symptoms began in 1970. Even considering the Veteran's wife and daughter's statements from May 2016, they do not demonstrate that the Veteran's back pain symptoms began in service, but, at the earliest, in approximately 1969. Thus, the preponderance of the evidence is against a finding that service connection for arthritis is warranted on the basis of continuity of symptomatology. The available competent and credible evidence, including post-service treatment records, show no complaints, symptoms, findings or diagnoses associated with arthritis until several decades after service and does not link his current back problems to service. As such, service connection is not warranted on this basis. The April 2016 examiner, upon review of the record, to include in-service records appertaining to the motor vehicle accident and horse riding incident, opined that the Veteran's current back disabilities were less likely than not related to service. He reasoned that there was not enough medical evidence from service to form a link between the horseback riding incident, the only record of back problems in the service treatment records, and the Veteran's current spine disabilities. The Board finds that this examination is adequate for purposes of adjudicating the Veteran's claim as it took into account review of the Veteran's record and medical history. The opinion provided was based on a physical examination complete with X-rays. It also included a historically accurate explanation of rationale that cited to factual data. As such, the Board finds that this VA examination is competent, credible, and dispositive as to the claim for service connection for a back disability. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Veteran is competent to describe any pain he experienced in service and since, any contentions by the Veteran that he has a back disability, such as degenerative arthritis, degenerative disc disease, or lumbar radiculopathy, related to active service are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is because there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation of this type of orthopedic disability. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Further, the Board notes that Veteran's wife and daughter are competent to describe their lay observations of the Veteran. However, for the reasons discussed above, to the extent either intended their statements to suggest that the Veteran has a current back disability that is related to service, they are not competent evidence. In summation, the preponderance of the evidence is against a finding that any of the Veteran's current back disabilities are related to service. The evidence is not in a state of equipoise, and thus the benefit of the doubt is not for consideration. The claim must be denied. ORDER Entitlement to service connection for a back disability, to include degenerative arthritis, degenerative disc disease, and lumbar radiculopathy, is denied. REMAND The Board observes that in June 2016 the Veteran was provided a VA examination to determine whether he had a current left knee disability that was related to his service-connected left hip disability. The VA examiner opined that the Veteran's left knee arthritis was less likely than not related to his service-connected left hip disability. However, the question of whether the Veteran's left knee arthritis was aggravated by his service-connected hip disability was not addressed in this opinion. As such, the Board observes that a supplemental opinion addressing the question of aggravation is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Please provide the Veteran with the appropriate authorizations to assist him with obtaining any outstanding non-VA medical records regarding the treatment of his left knee osteoarthritis and strain. Provide him the opportunity to submit additional records in support of his claim for service connection. 2. Please obtain any outstanding VA records relevant to knee treatment that have not already been associated with the claims file. 3. After the completion of steps 1 and 2, please arrange for the June 2016 VA examiner to provide an addendum opinion to answer the following questions. If the June 2016 VA examiner is not available, please request that an appropriate VA opinion provider give the requested opinion. If it is determined that a VA examination is necessary, one should be scheduled. Is it at least as likely as not (50 percent probability or greater) that the Veteran's left knee osteoarthritis and/or strain was aggravated (any increase in disability) by his service-connected left hip disability? If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of osteoarthritis and/or strain (i.e., a baseline) before the onset of the aggravation. The claims file should be made available to and reviewed by the opinion provider. All indicated tests and studies should be undertaken. The opinion provider must explain the rationale for all opinions rendered, citing to supporting factual data and/or medical literature, as appropriate. 4. Finally, please readjudicate the claim. If the claim remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs