Citation Nr: 1807341 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 06-18 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a back disorder, to include on a secondary basis. 3. Entitlement to service connection for a right knee disorder, to include on a secondary basis. 4. Entitlement to service connection for sciatica of the bilateral lower extremities, to include on a secondary basis. 5. Entitlement to an effective date earlier than May 23, 2003, for the grant of service connection for Type II diabetes mellitus. 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 January 1959 to January 1961, and from October 25, 1961, to November 20, 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2004 and April 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before Decision Review Officer in May 2007 and a copy of that transcript is of record. The Veteran testified before a now retired Veterans Law Judge in December 2009 and a copy of that transcript is of record. In a January 2010 decision, the Board remanded the appeal for further development. In March 2013 the Veteran testified before the undersigned VLJ and a copy of that transcript is of record. In October 2013 and May 2014 decisions, the Board remanded the appeal for further development. This appeal was processed using the Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDINGS OF FACT 1. The Veteran's left knee disability was not incurred in or aggravated by active military service. 2. The Veteran's back disorder did not manifest during or as a result of active military service; and is not etiologically related to a service-connected disorder. 3. The Veteran's right knee disability did not manifest during or as a result of active military service; and is not etiologically related to a service-connected disorder. 4. The Veteran's bilateral lower extremity disability did not manifest during or as a result of active military service and is not etiologically related to a service-connected disorder. 5. The Veteran has not submitted sufficient evidence to rebut the presumption of regularity as to the mailing of the notice letter concerning the March 1962 rating decision that denied service connection for diabetes; the Veteran did not appeal that decision and it became final. 6. On May 23, 2003, the Veteran filed a formal claim to reopen his previously denied claim of entitlement to service connected for diabetes. 7. No communication received prior to May 23, 2003, can be reasonably construed as a claim to reopen the previously denied claim of entitlement to service connection for diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for bilateral lower extremities disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.14 (2017). 5. The criteria for an effective date earlier than May 23, 2003, for the grant of service connection for diabetes have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (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. 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 notes that over the course of the appeal the Veteran has asserted that some of his service treatment records are missing. As part of the September 2014 remand, the Board instructed that the RO attempt to obtain the Veteran's Medical Evaluation Board proceedings. A May 2015 request for information response noted that the Veteran's complete personnel file and all available service treatment records have been loaded to VBMS. The response stated "please do not submit additional PIES request when the Veteran's documents have been uploaded to VBMS". The RO notified the Veteran of this in an August 2015 letter. Therefore, a remand to attempt to obtain additional service treatment records and personnel records is not necessary. Nonetheless, to the extent that any of the Veteran's service treatment records are unavailable, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran was afforded a VA examination in March 2010 and a VA addendum opinion in March 2015. In an October 2012 statement, the Veteran asserted that the VA examiner spent most of his time on the phone trying to locate a "remand and claims file" and complaining of "an examination and he never saw the file". The Veteran stated "I know not whose painless left leg the good and stressed examiner lifted crossed or pulled 3 times. It was note mine." In a September 2017 statement, the Veteran's representative asserted that the VA examination was not adequate because the rationale for the unfavorable opinion was there is no documentation of ongoing complaints reported by the Veteran. In a November 2017 statement, the Veteran's representative asserted that the VA examination was not adequate but did not provide the basis for this argument. The Board has considered the assertions regarding the VA examination and addendum opinion. However, the Board finds that the March 2010 and March 2015 VA reports are adequate because they are based on the Veteran's medical history, review of the claims file, and supported by a rationale based on sound medical principles. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 12 (2007). The Board also finds that the RO has substantially complied with the October 2013 and September 2014 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Board notes that over the course of the appeal, the Veteran has provided several statements regarding the basis of his claims. However, at the March 2013 Board hearing, the Veteran clarified and confirmed his contentions. The Veteran contends that he injured his left knee in approximately August 1960 when he fell on a wet ladder. The Veteran contends that his back disability is due to marching while on active duty and falling on the wet ladder. The Veteran also contends that he fell at work in 1970 was due to his weakened left knee. The Veteran also contends that his right knee is secondary to his left knee. The Veteran also contends that he has sciatica of the bilateral lower extremities due to his back. See March 2013 Board hearing transcript and buddy statements. 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 the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (2012); 38 C.F.R. 3.303 (a) (2017). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Left Knee Turning to the evidence of record, the Veteran has a current diagnosis of degenerative joint disease of the left knee as illustrated by the March 2010 VA examination. The Veteran's June 1958 enlistment report of medical examination is absent of any relevant notations of defect or diagnoses. The Veteran's December 1960 separation report of medical history is shows that the Veteran specifically denied "trick" or locked knee. The Veteran stated that "to the best of my knowledge I am in good health." The Veteran's December 1960 separation report of medical examination shows that the Veteran's lower extremities were noted as normal. A January 1961 physical statement upon separation shows that the Veteran confirmed that there had been no change in his physical condition since his last final type physical examination in December 1960 with no exceptions. The Veteran's October 1961 enlistment report of medical examination shows that the Veteran's lower extremities were noted as abnormal. It was noted that the Veteran had a healed fracture of the left knee with poor alignment. The Veteran's October 1961 enlistment report of medical history shows that the Veteran reported a history of swollen or painful joints and cramps in his legs. It was noted that the Veteran had occasional swelling of the joints in high school when actively engaged in sports. The Veteran also reported that he had cramping in his legs in high school. In a May 2005 opinion, a private physician, B.C noted that the Veteran served with the United States Army in Korea from July 1959 through August 1960. The physician noted that the Veteran fell off a wet ladder and damaged his left knee in route from Korea to the United States in August 1960. The physician stated that the injuries to his left knee are service connected. At the December 2009 Board hearing the Veteran reported that the doctor who provided the private opinion examined him and reviewed his medical records before providing his opinion. The Veteran was afforded a VA examination in March 2010. The examiner noted that there were no records of injury to the left knee but frequent visits to the clinic for small laceration thumb. The examiner noted that the Veteran was discharged in December 1960 and stated he was in good health. The examiner noted that the October 1961 recall examination noted "healed left knee in poor alignment". The examiner noted a November 2004 VA x-ray that revealed very mild early DJD changes noted of the knees and a March 2010 x-ray revealed mild degenerative joint disease findings. The examiner concluded that the left knee problems were not caused by or a result of military service "slip in ladder striking knee". The examiner explained that it is unlikely that someone would avail themselves of medical care frequently for a laceration of the thumb yet never of a severely injured left knee. The examiner also noted that the discharge examination shows that the Veteran stated that "I am in good health" and normal examination noted is unlikely to be associated with a bad knee. The examiner also stated that the comment that he had a fracture of the knee with poor alignment was nonsense since there is no x-ray to back this statement up. The examiner stated that if he had a fracture it certainly could not have occurred in military service. The examiner stated that the Veteran never had such a fracture because on all subsequent evaluations regarding the Social Security claim for the back there was no comment regarding the knee but most importantly it is impossible for one to have a "poorly aligned knee" in 1961 and in 2010 there is normal alignment and less DJD in the knee than the average 74 year old. In an April 2011 opinion, a private physician B.C noted that the Veteran fell off a wet ladder and damaged his left knee in route from Korea to the United States in August 1960. The physician stated that the injury to his left knee was service connected. The Veteran was afforded a VA addendum opinion in March 2015. The examiner concluded that it was clear and unmistakable that the Veteran's pre-existing "healed fracture of the lt. knee with poor alignment" was not permanently worsened during his second period of active duty from October 25, 1961 to November 20, 1961. The examiner also concluded that it was clear and unmistakable that any permanent worsening was due to the natural progression of the disorder. The examiner explained that the active duty from October 25, 1961 to November 20, 1961 was one of being preset on the base only because on entrance examination the diabetes was discovered and plans began immediately to get the Veteran discharged. The examiner explained that records show that in early November within a week of entrance he was writing a request for discharge and not performing any significant military duties with no documented knee stressing activities. The examiner stated that the changes that have occurred are unmistakably from the natural progression of the disorder. Based on the above, the Board finds that entitlement to service connection for a left knee disability is not warranted. In regards to the Veteran's first period of service, the Board acknowledges the lay reports of the Veteran's injury when he slipped on a wet ladder. The Board finds that the lay contention are competent and credible in regards to the ladder accident as the evidence of record does not directly contradict the lay testimony of record. However, in regards to the Veteran's assertions that he fractured his left knee due to the fall or continued to suffer from left knee pain after the reported incident, the Board finds that the Veteran is less than credible. The Board acknowledges the Veteran's assertions that service treatment records for this injury are missing from his claims file. Nonetheless, as noted above on separation in December 1960 the Veteran's lower extremities were noted as normal. Additionally, the Veteran specifically denied tricked or locked knee and reported that he was in good health. Furthermore, on reenlistment in October 1961 the Veteran reported a history of swollen or painful joints and cramps in his legs that he related back to high school with no mention of the reported slip and fall on a wet ladder during his first period of service. The Board is aware of the concept outlined by the United States Court of Appeals for Veterans Claims (Court) that "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The Board also notes that in Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court noted in a footnote that "as a general matter, the absence of evidence is not substantive negative evidence. While the majority agrees that this is not an absolute rule, there must be 'a proper foundation ... to demonstrate that such silence has a tendency to prove or disprove a relevant fact'." The Court also referenced Federal Rule of Evidence 803(7) and cited Buczynski for the proposition that "'the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.'" In this case, the Board finds that a proper foundation exists, as the Board finds that the Veteran's reported fractured left knee and continued left knee pain would have ordinarily been recorded in the Veteran's service treatment record. The Board again notes the Veteran's assertions that some of his service treatment records are missing. However, the Veteran's specific denial of a left knee problem on separation from his first period of service and the Veteran reporting having a history of joint pain and leg cramps in high school and not during his first period of service have a tendency to prove the relevant fact that such reported fractured left knee and ongoing left knee pain did not occur. As such, based on the preceding discussion, the denial of left knee problems on separation from his first period of service may serve as substantive negative evidence against such reported left knee fracture and on-going left knee pain. As such, the Board assigns no probative value to the Veteran's current recollection that he had a left knee fracture and ongoing pain during his first period of service. Instead, the Board finds the March 2010 VA examination report to be highly probative solely to the issue of whether the Veteran's current left knee disability is related to his first period of service. 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 March 2010 VA opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the VA opinion is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. Furthermore, the March 2010 VA examiner properly relied on the discharge examination in concluding that the chronicity of a left knee condition was not established during the Veteran's first period of service based on the available medical reports. As such, the Board finds the March 2010 VA opinion to be dispositive of the nexus issue in this case with regards to the Veteran's first period of service. With regard to the Veteran's second period of service, the Board notes that where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that '[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.' 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Here, a left knee disorder was clearly noted at entrance to the Veteran's second period of service. If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service; unless there is a specific finding (clear and unmistakable evidence) that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, the application of the presumption of aggravation is not automatic, for purposes of determining whether a veteran's disability is service-connected. Instead, application of the presumption aggravation first requires a showing by a veteran of a permanent worsening of a preexisting condition during the relevant period of service. Hill v. McDonald, 28 Vet. App. 243, 252-53 (2016). In this regards, the Board finds the March 2015 addendum opinion to be highly probative to the issue of whether the Veteran's noted left knee condition was aggravated during his second period of service. Here, the March 2015 VA opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the VA opinion is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. The Board again notes that the Medical Evaluation Board proceedings for the Veteran's second period of service are not available for review. However, the Board finds that the March 2015 VA examiner properly addressed whether the Veteran's condition underwent a permanent increase and whether any increase was clearly and unmistakably due to the natural progression of the disorder. The Board acknowledges the March 2010 VA examiner's opinion that the comment that the Veteran had a fracture of the knee with poor alignment was nonsense since there is no x-ray to back this statement up. However, the Board places more probative value on the October 1961 enlistment report of examination in determining if a left knee condition was "noted" on enlistment. Furthermore, even if the Board were to conclude that the Veteran did not enter his second period of service with a "noted" left knee condition, there is no competent and credible evidence of record that suggests the Veteran's current left knee disability is related to his second period of military service. The Board also acknowledges the lay assertions of record that the Veteran's left knee disability is related to his military service. 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, determining the etiology of left knee degenerative joint disease falls outside the realm of common knowledge of a lay person. In this regard, while the lay witnesses of record can competently report their observations, any opinion regarding the nature and etiology of the Veteran's disability requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). The Board notes that the diagnosis of arthritis is not within the ability of a lay person to diagnose because a competent medical expert could not diagnose the Veteran based on reported symptoms alone and required specialized testing beyond ordinary clinical evaluation. See Mattke v. Deschamps, 374 F.3d 667, 670 (8th Cir. 2004) (providing that a diagnosis by laboratory testing is distinctly not within the realm of common lay knowledge). As such, the Board assigns no probative weight to the lay assertions regarding the etiology of the Veteran's left knee disability. The Board also acknowledges the private opinions submitted by B.C. However, B.C did not reconcile his conclusions of the left knee injury being related to the reported fall off a wet ladder with the December 1960 separation findings of normal lower extremities and the Veteran's specific denial of a history of knee problems on separation. B.C also failed to reconcile his conclusions with the notation of a history of a fractured left knee on enlistment to the Veteran's second period of service. As such, the Board assigns the private opinions provide by B.C no probative value in determining whether the Veteran's left knee disability is etiologically related to his military service. In regard to presumptive service connection and continuity of symptoms, the Veteran's degenerative joint disease of the left knee is properly afforded such consideration, as arthritis is a enumerated conditions under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, as the most probative evidence of record is against a finding that the Veteran had an in-service onset of symptoms that continued after service, service connection based on continuity of symptomatology is not warranted. Additionally, there is no competent and credible evidence of record that the Veteran's degenerative joint disease of the left knee manifested to a compensable degree within one year of the Veteran's discharge from service. See 38 C.F.R. § 3.307 (a), 3.309(a). While the Veteran was noted as having a left knee condition on reenlistment in October 1961 it was not noted as arthritis. Furthermore, the first notation of degenerative joint disease of the left knee was a December 2004 VA treatment record. As such, service connection is not warranted based on these theories of service connection. Therefore, the Board finds that the weight of the evidence is against a finding of service connection. 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. 38 C.F.R. § 3.102 (2016), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Back Disorder Turning to the evidence of record, the Veteran has a current diagnosis of lumbar degenerative joint disease as evidence by the March 2010 VA examination. The Veteran's June 1958 enlistment report of medical examination is absent of any relevant notations of defect or diagnoses. The Veteran's December 1960 separation report of medical history shows that the Veteran denied arthritis or rheumatism and bone joint and other deformity. The Veteran stated that "to the best of my knowledge I am in good health." The Veteran's December 1960 separation report of medical examination shows that the Veteran's spine and musculoskeletal were noted as normal. A January 1961 physical statement upon separation shows that the Veteran confirmed that there had been no change in his physical condition since his last final type physical examination in December 1960 with no exceptions. The Veteran's October 1961 enlistment report of medical history shows that the Veteran denied arthritis or rheumatism and bone joint and other deformity. The Veteran did report a history of swollen or painful joints. It was noted that the Veteran had occasional swelling of the joints in high school when actively engaged in sports. The Veteran's October 1961 enlistment report of medical examination shows that the Veteran's spine and musculoskeletal were noted as normal. Private treatment records dated December 1972 February 1985 show that the Veteran underwent a discectomy and lumbar spine fusion in February 1972. It was noted that the Veteran continued to have right leg and foot discomfort. The Veteran was diagnosed with post lumbar spine fusion pain syndrome with right neuralgia. An October 1981 treatment record shows that it was noted that the Veteran gave a history of being injured in 1972. In a May 2005 opinion, a private physician, B.C noted that the Veteran served with the United States Army in Korea from July 1959 through August 1960. The physician noted that the Veteran fell off a wet ladder and damaged his lumbosacral spine in route from Korea to the United States in August 1960. The physician stated that the injuries to his back were service connected. At the December 2009 Board hearing the Veteran reported that the doctor who provided the private opinion examined him and reviewed his medical records before providing his opinion. The Veteran reported that in 1970 he was running up some stairs and his left leg turned and twisted and the leg gave way and he fell. He reported that he went to see a doctor and he had broken disc in his back and had an operation. The Veteran also asserted that the back were due to his left knee. The Veteran was afforded a VA examination in March 2010. The Veteran reported that he twisted his back at work in 1971 and the low back condition was diagnosed and paid for as workman's compensation. The examiner noted a November 2004 VA x-ray that revealed degenerative disease. The examiner concluded that the lower spine problems were not caused by or a result of the military service "slip on ladder striking knee". The examiner explained that there was no history of low back problems in military service but two falls on the job in 1971. The examiner noted that neither fall was described as associated with knee problems. The examiner noted that the lumbar spine was a workman's compensation event. The examiner explained that such assignment to worker's compensation is further echoed by the numerous examination and histories given from 1972 to 1980 by this Veteran with no mention of a knee condition and the fact that the surgeries were paid for by Workman's compensation and the Social Security was granted for a work related condition. In an April 2011 opinion, a private physician B.C noted that the Veteran fell off a wet ladder and damaged his lumbosacral spine in route from Korea to the United States in August 1960. The physician noted that the injuries to his back were service connected. B.C also stated that the Veteran's disability was aggravated by the left knee arthritis. He stated that when one joint is injured or unstable, it puts extra work on the other joints. Based on the above, the Board finds that entitlement to service connection for a low back disability is not warranted. First, as the Veteran is not in receipt of service connection for his left knee disability, consideration of service connection on a secondary basis is not necessary for the Veteran's low back disability. In regards to direct service connection, the Board again finds that the lay contentions are competent and credible in regards to the ladder accident and low back symptoms after marching with heavy equipment during basic training as the evidence of record does not directly contradict the lay testimony of record. However, in regards to the Veteran's assertions that he continued to suffer low back pain after the reported incidents, the Board finds that the Veteran is less than credible. The Board acknowledges the Veteran's assertions that service treatment records are missing from his claims file. Nonetheless, as noted above, on separation in December 1960 the Veteran's spine and musculoskeletal were noted as normal. Additionally, the Veteran specifically denied arthritis or rheumatism and bone joint and other deformity and reported that he was in good health. Furthermore, on reenlistment in October 1961 the Veteran reported a history of swollen or painful joints that he related back to high school with no mention of the reported slip and fall on a wet ladder during his first period of service or symptoms due to marching. The Board again finds that the Veteran's reported continued low back pain would have ordinarily been recorded in the Veteran's service treatment records. The Board again notes the Veteran's assertions that some of his service treatment records are missing. However, the Veteran's specific denial of joint pain on separation from his first period of service, his reports that he was in good health and the Veteran reporting having a history of joint pain in high school and not during his first period of service have a tendency to prove the relevant fact that such reported ongoing low back pain did not occur. As such, based on the preceding discussion, the denial of joint pain and the finding of a normal spine on separation may serve as substantive negative evidence against such reported on-going low back pain. As such, the Board assigns no probative value to the Veteran's current recollection that he had ongoing back pain since his military service. Instead the Board finds the March 2010 VA examination to be highly probative to the issue of whether the Veteran's low back disability is related to his military service. Again, the March 2010 VA opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the VA opinion is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. Furthermore, the March 2010 VA examiner properly relied on the discharge examination and post-service medical records in concluding that the chronicity of a back condition was not established based on the available medical reports. As such, the Board finds the March 2010 VA opinion to be dispositive of the nexus issue in this case. The Board again acknowledges the lay assertions of record that the Veteran's back disorder is related to his military service. However, again, the lay witnesses of record have not demonstrated the medical expertise necessary to provide such an opinion. See Jandreau, 492 F. 3d 1372, 1376. The Board again notes that the diagnosis of arthritis is not within the ability of a lay person to diagnose because a competent medical expert could not diagnose the Veteran based on reported symptoms alone and required specialized testing beyond ordinary clinical evaluation. See Mattke, 374 F.3d 667, 670. As such, service connection is not warranted based on these theories of service connection. As such, the Board assigns no probative weight to the lay assertions regarding the etiology of the Veteran's left knee disability. The Board also again acknowledges the private opinions submitted by B.C. However, B.C did not reconcile his conclusions of the low back disability being related to the reported fall off a wet ladder with the December 1960 separation findings of a normal spine and the Veteran's reports of good health on separation. B.C also did not reconcile his conclusions with the Veteran's other post service medical records that are absent of reports relating the Veteran's back condition to any event in service. As such, the Board assigns the private opinions provided by B.C no probative value in determining whether the Veteran's back disorder is related to his military service. In regard to presumptive service connection and continuity of symptoms, the Veteran's degenerative joint disease of the lumbar spine is properly afforded such consideration, as arthritis is a enumerated conditions under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, as the most probative evidence of record is against a finding that the Veteran had an in-service onset of symptoms that continued after service, service connection based on continuity of symptomatology is not warranted. Additionally, there is no competent and credible evidence of record that the Veteran's degenerative joint disease of the lumbar spine manifested to a compensable degree within one year of the Veteran's discharge from service. See 38 C.F.R. § 3.307 (a), 3.309(a). The first notation of degenerative joint disease of the lumbar spine was a December 2004 VA treatment record. Therefore, the Board finds that the weight of the evidence is against a finding of service connection for a back disorder. 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. Gilbert, 1 Vet. App. 49, 54-56. Right Knee and Bilateral Lower Extremities The Veteran has a current diagnosis of right knee degenerative joint disease as evidence by a December 2004 VA treatment record. The Veteran also has a current diagnosis of sciatica of the bilateral lower extremities as evidenced by a September 2016 VA examination. However, as the Veteran is not in receipt of service-connection for his left knee disability or low back disability, service connection on a secondary basis is not warranted for the Veteran's currently diagnosed right knee disability and bilateral lower extremity disability. See 38 C.F.R. § 3.310 (a); Allen, 7 Vet. App. 439, 448. Furthermore, the Board notes that the Veteran is currently in receipt of service connection for peripheral neuropathy of the bilateral lower extremities as secondary to his service-connected diabetes mellitus. In this regard, the Board notes that, although various manifestations of a single disability may be assigned separate disability evaluations, VA regulations preclude the practice of "pyramiding," which is the evaluation of the same manifestation of a disability under different diagnoses. See 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1994). Indeed, the United States Court of Appeals for Veterans Claims (Court/CAVC) has noted that 38 U.S.C. § 1155 implicitly contains the concept that "the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology; such a result would overcompensate the claimant for the actual impairment of his earning capacity" and would constitute pyramiding. Esteban, 6 Vet. App. at 261, quoting Brady v. Brown, 4 Vet. App. 203 (1993). Here, the Veteran the Veteran's peripheral neuropathy of the bilateral lower extremities is rated analogously under diagnostic code 8599-8520 for the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8599-8520 (2017). Thus, awarding service connection (and hence, a separate disability rating) for sciatica of the bilateral lower extremities would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Therefore, the Board finds that the weight of the evidence is against a finding of service connection for a back disorder. 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 Gilbert, supra. Earlier Effective Date The Veteran contends that he is entitled to earlier effective dates for his diabetes. Specifically, the Veteran contends that he did not receive notice of the March 1962 rating decision so he was unable to appeal the decision. See March 2013 Board Hearing Transcript. Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). For service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. 38 C.F.R. § 3.400 (b)(2). The Board notes that VA has amended the regulations pertaining to filing claims on standard VA forms. However, these amendments do not apply to the Veteran's case given the timing of the claim. In regards to the date of claim, the Veteran separated from his second period of service on November 20, 1961. A March 21, 1962, rating decision denied entitlement to service connection for diabetes. Although the March 1962 rating decision and rating code sheet are in the Veteran's electronic claims file, there is no notice letter on file informing the Veteran of the decision or of his appeal rights. Additionally, as noted above, the Veteran claims he never received notice of this decision. Nonetheless, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." See United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15, 47 S. Ct. 1 (1926). In Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), the Court found that the presumption of regularity applied to VA. The Court found that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. The presumption is not absolute; it may be rebutted by the submission of clear evidence to the contrary. Once clear evidence is submitted, VA is no longer entitled to the benefit of the presumption and the burden shifts to VA to establish that a government official properly discharged his or her official duties. Applying the presumption of regularity to the RO, there is no clear evidence indicating that the RO did not mail a notice letter of the March 1962 rating decision. Evidence or fact of non-receipt may arguably raise an inference that a notice letter was not mailed, but it is not the type of "clear evidence" required to rebut the presumption of regularity. See Montalvo v. Brown, 7 Vet. App. 312, 314; Ashley, 2 Vet. App. 65. Moreover, the Board observes that no VA correspondences were returned as undeliverable during the time of the May 1962 rating decision. Furthermore, in response to his representative asking "did you ever notify the VA that you had a change of address and you no longer were at the same address?" the Veteran stated "that address is still good today". As such, there is no evidence of any address irregularities at the time of the March 1962 rating decision. In sum, it is presumed that the RO mailed the rating decision to the Veteran at his latest address of record. The Board notes that, while the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level, such as in the instant case. The Court specifically held that a statement of a veteran, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet. App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Therefore, the presumption of regularity is not rebutted and the Board concludes that the Veteran was notified of the March 1962 rating decision. He did not appeal that decision and no additional evidence pertinent to the issue was associated with the claims folder within one year of the decision. See 38 C.F.R. § 3.156 (b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 1962 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a claim for diabetes on May 23, 2003. The Board finds that no correspondence or communication received prior to May 23, 2003 can be reasonable construed as intent to file a formal or informal claim for diabetes. Therefore, the Board must find that the appropriate date of claim is May 23, 2003. In regards to the date entitlement arose, the RO granted service connection for diabetes in an April 2011 rating decision. The RO based the grant of service connection on a March 2010 VA examination that concluded that there was evidence of diabetes upon reactivation in October 1961. Therefore, resolving all reasonable doubt in favor of the Veteran, entitlement arose during his second period of military service. The Board again notes that the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In applying the regulation to the facts of the case, the date of claim is later than the date entitlement arose. Therefore, the appropriate effective date is May 23, 2003. 38 C.F.R. § 3.400 (r). In sum, the presently assigned effective date of May 23. 2003, is appropriate and there is no basis for an award of service connection for depression prior to that date as finality has attached to the March 1962 rating decision. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a back disorder is denied. Entitlement to an effective date earlier than May 23, 2003, for the grant of service connection for diabetes is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs