Citation Nr: 1817282 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 13-09 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served from June 1982 to May 1985, from March 1990 to May 1992 and from October 2007 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Phoenix, Arizona. Jurisdiction of the case has since been transferred to the RO in St. Paul, Minnesota. This matter previously came before the Board in May 2017, at which time it was remanded for additional development. After further development this matter is now ready for adjudication. FINDINGS OF FACT 1. The Veteran's current cervical spine disability is not related to military service. 2. The Veteran's current right knee disability is not related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159 (2017). VA has met its duties to notify and assist. This appeal was remanded by the Board in May 2017 in order to obtain an addendum from the December 2015 VA examiner. An addendum opinion was submitted by the examiner clarifying the nature and etiology of the Veteran's disabilities. The Board is now satisfied there has been substantial compliance with the Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: "(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 or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have occurred in service if manifested to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Cervical Spine Disability Based on the evidence as detailed below, entitlement to service connection for a cervical spine disability is not warranted. First, the Board notes that the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a cervical spine disability while in service. In fact, the Veteran's physical examinations during service indicate that he was in good health and he felt as though he was in good physical condition. The first indication of cervical spine symptoms after service was not until a December 2011 VA ambulatory care history and physical entry where neck pain was noted. An MRI performed in June 2012 showed no soft tissue abnormality and no acute or intrinsic bony abnormality of significance was noted. The Board notes that this was 19 years after the Veteran left active duty. Therefore, continuity has not been shown based on clinical evidence of record. As part of this claim, the Board recognizes the Veteran's statements regarding his history of symptoms. Specifically, that his cervical spine disability was caused by a softball injury that occurred during service. In this regard, while the Veteran is not competent to diagnose a disability such as a cervical spine disability, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, does not appear to be accurate, in view of other evidence of record. Specifically, prior to December 2011, the Veteran's VA treatment records do not reflect that he had any complaints of cervical spine symptomatology. Furthermore, an MRI performed in June 2012 showed no acute or intrinsic bony abnormality of significance. Therefore, a continuity of symptoms is not established based on the clinical evidence or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between the Veteran's claimed disabilities and either his active duty or a service-connected disability. In this case, the Board finds that the weight of the competent evidence is against such a nexus. The Veteran reports that his neck has bothered him since active service due to an injury that occurred while playing softball. However, the Board places more value on the opinions of the VA examiners. The December 2015 VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred or caused by the claimed in-service injury due to the lack of evidence of a neck condition in his service treatment records. The December 2015 VA examiner provided an addendum opinion in which he again opined that the Veteran's cervical spine disability was less likely than not incurred in service due to no proof or evidence of a neck condition or neck pain in his service treatment records. He further stated that there is no direct, secondary, or aggravation of any neck condition in the service treatment records and the Veteran's neck condition is not related to in-service in any form or fashion. Additionally, the June 2017 VA examiner opined that it seemed that his neck pain got worse after his diagnosis of prostate cancer and his use of hormonal therapy may have caused arthralgia. The examiner also cited scientific medical literature that states neck pain causes include: muscle strains, overuse such as too many hours hunched over your computer or smartphone, reading in bed, and certain diseases, such as rheumatoid arthritis and cancer. Therefore, the Board concludes that service connection for a cervical spine disability is not warranted. Right Knee Disability The Veteran asserts that he had knee pain related to physical training in service. A review of the Veteran's service treatment records reveal no complaints of knee pain, treatments, or diagnosis of a knee disability. His service treatment records show evidence of muscle strain in the right leg on June 1, 1988 which was treated with conservative therapy and nonresiduals were found after this. Additionally, as noted above, the Veteran reported that he felt as though he was in good physical condition while in-service. The Veteran stated he had an onset of right knee pain around the 1980's while doing a lot of physical training. However, he did not report the pain for the fear of being discharged. The Veteran's treatment records indicate that he experienced gradual onset of knee pain between 2007 and 2008 during his last tour of duty. The Veteran reported that he experienced pain and flare-ups in both his left and right knee. However, only an X-ray of his left knee was conducted in April 2008 and no further reports of right knee pain were noted. As a result, continuity of symptomatology has not been established by the clinical evidence. As part of this claim, the Board recognizes the statements from the Veteran regarding his history of right knee impairment since service. In this regard, while the Veteran is not competent to make a diagnosis related to a knee impairment, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is insufficient to warrant service connection solely on this basis. The Veteran reported an onset of right knee pain in the 1980s, but stated that he did not report his pain for fear of being discharged. Therefore, no documentation exists for complaints of knee pain. During a December 2015 exam the Veteran stated that he experienced right knee pain between 2007 and 2008, but was not referred for physical therapy or orthopedics. Additionally, an X-ray was only conducted on his left knee. Thus, continuity of symptomatology has not been established by the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed right knee disability to active duty, despite his contentions to the contrary. A December 2015 VA examiner noted that the Veteran's X-ray showed minimal/mild degenerative joint disease of the right knee. During a May 2017 examination, the examiner noted that the Veteran's right knee was normal. The June 2017 VA examiner opined that it was less likely than not that the Veteran's right knee disability was incurred in-service due to lack of objective supportive evidence that he has arthritis in his right knee and the lack of evidence of chronic treatment following a year after discharge. Additionally, the examiner noted that it seemed that the Veteran has tendonitis which could be due to strain. Therefore, there is no nexus between active duty and the Veteran's current right knee disability. The Board notes that the Veteran has not offered any medical evidence, including private medical opinions, to support his assertions that his right knee disability is related to active service. The Board finds that the examinations were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right knee disability and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a cervical spine disability is denied. Service connection for a right knee disability is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs