Citation Nr: 1808836 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-06 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.Spigelman, Associate Counsel INTRODUCTION The Veteran had active service from July 1997 to May 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. As a procedural matter, the representative's informal brief presentation identified the issue as "service connection for lumbosacral or cervical strain." However, the issue on appeal has been developed only as a low back disorder; therefore, the issue of a cervical strain will not be considered. The next issue is identified as "service connection for leg, limitation of strain flexion of." The Board considers this as part and parcel of the right knee claim rather than as a new claim for benefits. Therefore, the issues on appeal are those characterized on the Title Page. FINDINGS OF FACT 1. A right knee disorder is not etiologically or causally related to service and was not caused or permanently worsened by a service-connected disability. 2. A low back disorder is not etiologically or casually related to service and was not caused or permanently worsened by a service-connected disability. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in or aggravated by active service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 2. A low back disorder was not incurred in or aggravated by active service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Veteran has been diagnosed with right knee and low back disorders. Specifically, a May 2012 VA examiner diagnosed a right knee sprain. Moreover, the Veteran has been diagnosed with lumbosacral sprain. Therefore, disorders have been shown. However, neither knee sprain nor low back sprain are one of the enumerated disorders listed as entitled to the one-year presumption so no further discuss of that theory of entitlement is warranted. Similarly, they are not listed as chronic diseases under 38 C.F.R. §§ 3.307, 3.309(a); therefore, analysis under continuity of symptomatology is not for application. Nonetheless, the Veteran has asserted that his knee and back disorders are secondary to a service-connected disability and the theory of secondary service connection will be discussed below, as well direct service connection. Right Knee Disorder The Veteran asserts that he has a right knee disorder as a result of his active service. Alternatively, he asserts that his right knee disorder is caused or aggravated by his service-connected left ankle and tibia disabilities. A review of the service treatment records (STRs) reveals that the Veteran experienced left ankle and left tibia injuries while in service. A February 1998 discharge examination found the lower extremities to be clinically abnormal. At that time, he specifically reported experiencing pain in his left ankle, left tibia, and left knee; however, the record is negative as to complaints of, treatment for, or diagnoses of a right knee disorder. Therefore, a right knee disorder was not noted in service. At an August 1998 VA post-service examination, the Veteran recounted the history of his 1997 ankle injury. He reported pain in his upper leg and knee area and explained that it was difficulty for him to do extra activity, noting that at times his ankle and knee gave out with pain, requiring him to sit down. The diagnosis was status post-stress fracture in the left upper tibia and the left knee and ankle were normal. The examiner neither addressed nor diagnosed a right knee disorder at that time. While not dispositive, this suggests that the Veteran was not having right knee symptoms shortly after service separation. The first complaints related to the right knee were noted in a September 2011 treatment record, more than a decade after discharge; however, there is no indication that right knee symptomatology was related to active service. At a May 2012 VA examination, the Veteran reported that he had been experiencing weakness and soreness in both knees since 2008, dating the onset of right knee symptoms to 10 years after discharge. Of note, no examiner has established a medical nexus between the Veteran's right knee complaints and service. Therefore, direct service connection is not warranted. Significantly, the Veteran's main contention is that his right knee disorder is related to his service-connected left ankle disability. He underwent a VA examination in May 2012 but the examiner did not offer an opinion as to secondary service-connection. In a June 2012 follow-up opinion, the clinician opined that the Veteran's right knee disorder was less likely than not caused or aggravated by his service-connected left ankle disability. The examiner explained that ankle tendinitis was not an etiological factor of the Veteran's right knee disorder. In a supplemental medical opinion in September 2012, the clinician elaborated on his June 2012 opinion, stating that he did not have medical evidence or documentation of knee injuries occurring that were due to the Veteran falling down when his left ankle gave out and noting that the Veteran's right knee pain originated in 2008. This evidence weighs against the claim. In support of the claim, the Veteran submitted a February 2012 letter from a private physician reflecting that the Veteran had a severe ankle injury in service that lead to "bilateral stress fractures in his legs." The provider stated that the Veteran had noted that because of the weakness in the ankle and the injuries to the lower legs that he had experienced pain in his knees on and off since the original injury. The provider went on to note that the knee pains have led to lower back pain due to the abnormality in walking. The provider finally related that the Veteran's knee and back pain had prevented him from being able to function and work normally. While supportive of the claim, the Board places less probative value on the private opinion. In this regard, the provider has apparently summarized the observations made by the Veteran without offering a medical opinion as to whether the right knee disorder was either related to active service or was caused or aggravated by service-connected disabilities. A summary of facts without a medical opinion is not adequate and, as such, the February 2012 private opinion cannot serve as the basis of a grant of entitlement to service connection for a right knee disorder. Moreover, the February 2012 opinion is based on an inaccurate factual premise. It is uncontroverted that the Veteran had a left ankle injury in service; however, the stress fracture was only in the left leg, not bilateral as the provider indicated. Similarly, the provider noted that there were in-service "injuries to the lower legs;" however, the injury was only to the left leg, not the right. Further, the provider related that the Veteran had experienced knee pain on and off since the original injury but this statement is not supported by the contemporaneous evidence showing no complaints related to the right knee in service, at the time of discharge, or shortly after discharge. Rather, the evidence shows the onset of right knee symptoms approximately a decade after separation. Therefore, this opinion is assigned less probative value. On the other hand, the May 2012 examination and June and September 2012 medical opinions are adequate, when read in conjunction with one another, as the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran and private treatment providers, and provided thorough supporting rationales for the conclusions reached. As a result, the opinions provided by the VA examiner are the most probative evidence. Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for a right knee disorder is not warranted and the appeal is denied. Low Back Disorder The Veteran asserts that he has a low back disorder as a result of his active service. Alternatively, he asserts that his current low back disorder is caused or aggravated by a service-connected disability. STRs are silent for a diagnosis of a low back disorder while the Veteran was in active service. At a September 1996 enlistment examination, the spine and musculoskeletal system was found to be clinically normal upon examination. In a February 1998 discharge examination, he specifically denied that he had recurrent back pain. Further, the spine and musculoskeletal system were normal and there is no indication that he had a low back disorder. Therefore, a low back disorder was not noted in service. As to direct service connection, post-service evidence shows that the Veteran was diagnosed with a lumbosacral sprain in July 2008 due to a work-related injury. There was no connection made between his low back disorder and active duty. At a May 2012 VA examination, he reinforced that he injured his back as a result of a 2008 work injury. The diagnosis was low back strain but the examiner did not relate the low back disorder to service. In fact, the low back disorder was associated with a work-related injury that occurred some 10 years after service separation. Therefore, direct service connection is not warranted. The Veteran has primarily maintained that his low back disorder is related to his service-connected left ankle disabilities. The May 2012 examiner did not specifically address secondary service-connection but in a June 2012 medical opinion, the clinician opined that the Veteran's low back disorder was less likely than not caused or aggravated by his service-connected left ankle disability. The examiner explained that ankle tendinitis was not an etiological factor for low back sprains. In a supplemental medical opinion in September 2012, the clinician affirmed his opinion and explained that there was no medical evidence or documentation of the Veteran experiencing back injuries as a result of his falling down when his left ankle gave out. This evidence weighs against the claim. The Board has considered the same February 2012 letter from a private provider discussed above. To reiterate, the physician noted the Veteran's ankle injury in service, causing bilateral stress fractures in both legs, caused pain in the knees, which lead to low back pain due to an abnormal gait. For the same reasons identified above, the Board places less probative value on this opinion because it was a summary of the Veteran's statements without a rationale and it was based on and inaccurate factual basis. As above, the Board finds that the May 2012 VA examination and June and September 2012 VA medical opinions to be adequate, when read in conjunction with one another, as the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran and private treatment providers, and provided thorough supporting rationales for the conclusions reached. As a result, the opinions provided by the VA examiner to be the most probative evidence of record. Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for a low back disorder is not warranted and the appeal is denied. With respect to both claims, the Board has considered the Veteran's lay statements asserting a relationship between his left ankle and right knee and low back disorders as well as a statement from his wife describing that his knees began to hurt frequently soon after his service-connected ankle disability worsened. Her statement also notes that she frequently saw his legs go out as he was walking or going down stairs, causing him to fall hard on his knees. She further observed that his back hurt due to the facial expressions reflecting the pain he was experiencing. While the Veteran and his wife are competent to describe their observations, they are not competent to provide an opinion linking a right knee disorder or a low back disorder either to active service or to a service-connected disability, as those opinions require medical expertise and are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Therefore, they are not competent to provide an etiology opinion in this case. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Service connection for a right knee disorder is denied. Service connection for a low back disorder is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs