Citation Nr: 18139949 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-26 875 DATE: October 1, 2018 ORDER Entitlement to service connection for a low back disability is denied is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The Veteran’s current low back disability is unrelated to any in-service disease, injury or other event in service. 2. The Veteran’s current right and left knee disabilities are unrelated to any in-service disease, injury, or other event in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to March 1990. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 Regional Office (RO) rating decision. Service Connection The Veteran seeks service connection for a back disability and a bilateral knee disability. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir. 2004). A review of the service treatment records (STRs) shows that the Veteran reported a 4-day history of left knee pain in January 1986. There was no history of an injury. Range of motion was full, there was no swelling, and no instability. Slight crepitus of the patella was observed. The assessment was mild PFS (patellofemoral syndrome). The Veteran was treated for back pain of two days duration in June 1986. He reportedly hurt his back while diving off a board at a swimming pool. He described his back as being arched before hitting the water. On observation, the Veteran showed signs of pain when he raised his arms above his head, when he bent down, and went side to side. The impression was acute low back strain – mild without radiculopathy. The Veteran was also involved in a motor vehicle accident (MVA) in March 1989. He reported bilateral knee and low back pain. Physical examination revealed bilateral knee contusions. Knee x-rays revealed calcific peritendinitis at the soft tissue insertions on both patella, but otherwise negative. The Veteran’s discharge examination was negative for back and knee complaints, findings or diagnoses; and, the Veteran indicated on his January 1990 Report of Medical History that he thought he was in perfect health at that time. Likewise, he specifically denied back and knee pain at that time. Post-service private medical evidence of record shows current disabilities of lumbar strain, degenerative disc disease of the lumbar spine, and lumbar radiculopathy, as well as bilateral degenerative arthritis of the knees, and status post left knee meniscal tear. See August 2002 Fort Washington Hospital records and Dr. S.N.A. records (left knee); and, an August 2013 private clinical summary (low back), May 2016 VA examination report (back and knees). At a VA examination in May 2016, the examiner confirmed diagnoses of lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome, but opined that the Veteran’s current low back disability was unrelated to service. The examiner acknowledged the Veteran’s in-service reports of acute back pain, but found that the current disability was unrelated to any injury in service. The examiner reasoned that although the Veteran currently reports continuity of symptoms since an in-service injury, these assertions are inconsistent with the Veteran’s own self-reported history at the time of discharge which specifically denies back pain at that time. The Veteran reported to the examiner that he first sought post-service treatment for back pain in 1996, several years following service discharge. These records were not available to review. Further, although the Veteran denied an intervening injury between the time of discharge from service and treatment in 1996, he did report that he filed a workmen’s compensation claim for his back due to an on-the-job injury in 2013. Additionally, an April 2016 treatment report shows that the Veteran had been experiencing chronic back pain for “over 1.5 years,” without mention of an in-service injury. Considering the foregoing, the VA examiner opined that the Veteran’s in-service back pain resolved prior to discharge, and it is less likely than not that any current back disability is related to service. Similarly, the examiner confirmed diagnoses of bilateral degenerative arthritis of the knees, but opined that the Veteran’s in-service mild patellofemoral pain syndrome left knee and chondral defect medial femoral condyle status post chondroplasty left knee had resolved prior to service discharge and were less likely than not related to any current bilateral knee disability. The examiner reasoned that the Veteran’s current report of continuity of knee pain is inconsistent with his self-reported history at the time of separation when he specifically denying knee pain at that time. Moreover, this evidence, along with lack of post-service treatment for bilateral knee pain until arthritis and/or left knee meniscal tear until 2002 weighs against the claim. In other words, if the Veteran’s 2002 left knee meniscal tear was incurred in service, it is reasonable to infer that the Veteran would not have reported it at the time of discharge, and, would not have waited over 10 years to have it repaired. There is no medical evidence to the contrary. In a May 2016 lay statement, the Veteran’s ex-wife reported that for the 20 years that she was with the Veteran, he had many restless nights resulting in a lack of sleep, migraine headaches and an inability to hold a job. She also noted that his physical ailments including back and knee problems. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the ex-wife’s lay statement is not probative. She stated that the Veteran had knee and back pain, but made no mention of when the pain began, or that she witnessed him complaining of back and/or knee pain since service. In fact, it is not clear from the statement that she knew the Veteran during service or at the time of discharge. Moreover, even if we assume, arguendo, that she knew the Veteran at the time of discharge, as a lay person, she does not possess the requisite medical expertise to opine as to causation where, as here, the etiology of the Veteran’s lumbar spine and bilateral knee disabilities are not capable of lay observation. Similarly, the Veteran’s lay statements are outweighed by the competent medical evidence of record because his current assertions are inconsistent with what he reported at the time of discharge; and, moreover, because the Veteran does not possess the requisite medical expertise to opine as to the etiology of his current knee degenerative arthritis and lumbar spine intervertebral disc disease as this is a complex medical question not capable of lay observation. (Continued on the next page)   Accordingly, the preponderance of the evidence is against the claims; there is no doubt to resolve, and therefore the claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Cryan, Counsel