Citation Nr: 18101167 Decision Date: 05/01/18 Archive Date: 05/01/18 DOCKET NO. 16-57 142 DATE: May 1, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER Entitlement to service connection for a lower back condition, claimed as degenerative disc disease (DDD) is denied. Entitlement to service connection for a right knee condition, status post meniscus tear with osteoarthritis is remanded for additional development. FINDING OF FACT The evidence of record demonstrates that the Veteran’s low back condition, claimed as degenerative disc disease, is not etiologically related to his active service, to include as due to any in-service injury or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a lower back condition, claimed as degenerative disc disease (DDD) have not been met. 38 U.S.C. §§ 1131, 5107(2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1957 to September 1984. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 3.303 (a), 3.304 (2017). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. §§ 3.303 (a) (2017). In determining whether service connection is warranted for a disorder, 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 the claim, in which case the claim is denied. 38 U.S.C. §§ 5107 (West 2012); 38 C.F.R. §§ 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lower Back Condition The Veteran contends that he is entitled to service connection for a low back condition. Specifically, he contends that he was treated for complaints of low back pain in service in 1959 or 1960. The preponderance of the evidence is against his claim. Service treatment records were negative for any complaints, treatment, or a diagnosis of a low back condition. An enlistment examination, in June 1958, shows a normal physical evaluation. In a report of medical history, baring the same date, the Veteran indicated that he was in good health. Subsequent physical examinations revealed that the Veteran was deemed qualified for reenlistment and reports of medical history show that the Veteran reported that he was in good health. At separation, in March 1984, no conditions were reported. Post service treatment records reveal the Veteran’s complaints of low back pain. In July 1993, X-ray films of his low back revealed mild hypertrophic arthritic changes. In May 2009, the Veteran complained of right shoulder joint pain. Imaging studies show degenerative joint disease and type II acromion. Magnetic resonance imaging showed a partial tear supraspinatus of the shoulder. Evidence of a thoracic spine condition was also noted. However, no conditions of the low back or lumbar spine were discovered. A family medicine examination report, dated February 2013, did not reveal any evidence of tenderness on palpation of the lower back. In an orthopedic specialty note from October 2013, the Veteran again complained of back trouble. No diagnosis of a low back condition was noted. In this case, the Board recognizes that the Veteran has not been afforded a VA examination of the lumbar spine. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. §§ 5103A(d); 38 C.F.R. §§ 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. In this case, no examination is necessary in order to adjudicate the claim of low back condition because the evidence fails to show any indication that the Veteran’s low back condition or symptoms are causally related to active service or any service-connected disability. Notably, the Veteran’s complaints of low back pain were referenced sporadically and there is no evidence of a diagnosis of degenerative disc disease of the lumbar spine. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of in-service disease or injury to establish a service connection claim cannot be met upon additional examination. As to the merits of the Veteran’s claim, the Board has fully considered all medical evidence and lay assertions of record, to include a November 2016 lay statement where the Veteran stated that he worked in artillery in service, and was later promoted to Artillery Chief. He stated that his job was physically demanding, included countless hours digging, and heavy lifting. More specifically, he reported manhandling an M101 howitzer gun, digging holes to accommodate positioning self-propelled weapons, and off-loading weapons/ammunition from the trucks as needed. The Veteran also reported running in heavy boots and suffering joint pain and aches due to his laborious duties. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that the Veteran possesses the required training to diagnose a low back condition, to include degenerative disc disease, or opine as to their etiology. To the extent his statements may be competent; the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In this case, there is no evidence that the Veteran complained of or received treatment for a low back condition in service. Post service medical records show sporadic complaints of low back pain. There is, however, no evidence that the Veteran asserted that his low back condition and cervical strain are causally related. While the Board acknowledges the Veteran’s current symptoms and thoracic spine condition, the evidence of record does not support a finding of a causal relationship to active service. Based upon the forgoing, the Board finds that service connection is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. §§ 5107(b) regarding reasonable doubt are not applicable. Hence, the Veteran’s claim of entitlement to service connection for a low back disability must be denied. REMAND Regrettably, a remand is necessary as the November 2015 medical opinion is inadequate, where the examiner’s rationale for his determination was conclusory. The examiner opined that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” VA Disability Benefits Questionnaire, Medical Opinion, November 9, 2015, at page 4. The rationale provided was as follows: There is documentation indicating left knee pain x 15 hours assessment as knee strain per record 12/27/82. There is no documented evidence available for review to indicate that claimant’s left knee condition had become chronic and ongoing while in the service. Based on available records reviewed at this time, it is my opinion, claimant’s BILATERAL KNEE CONDITION IS LESS LIKELY AS NOT INCURRED IN AND/OR CAUSED IN-SERVICE INJURY, EVENT, OR ILLNESS THAT OCCURRED BETWEEN 10/06/1957 AND 09/30/1984 Id., at page 4-5. Upon review of this rationale, the examiner provided no explanation as to the right knee, only focusing upon the left knee in his rationale. Given such, remand is warranted for the examiner to specifically address the right knee. Notably, in a November 1972 orthopedic clinic note, it indicated that the Veteran complained of sharp pain in the right leg and bulging in the calf. Post-service treatment records show that the Veteran complained of chronic right knee pain. A confirmed diagnosis of degenerative arthritis of the right knee was noted in a Family Medicine Clinic record in June 2006. Upon remand, the examiner should consider this evidence. “[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, this matter is remanded for the following action: 1. Schedule the Veteran for a VA examination to assess the nature and etiology of his right knee condition. The entire claims file, to include a complete copy of this and all evidence relevant to the examiner’s review, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran’s documented history and all lay assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran’s right knee condition was caused by or otherwise related to his active service. The physician should take into account all prior medical evidence and conclusions and specifically comment on any apparent conflicts. Specifically, the examiner is invited to evaluate the Veteran’s lay statements as to any progression or worsening of symptoms. A complete rationale must be offered for all opinions offered and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner must specifically identify why this is the case and indicate what, if any, additional evidence would allow for a more conclusive decision. The appellant 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 of Veterans’ Appeals 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. §§ 5109B, 7112 (West 2012). Yvette R. White Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel