Citation Nr: 18121908 Decision Date: 07/27/18 Archive Date: 07/26/18 DOCKET NO. 15-16 968 DATE: July 27, 2018 ORDER Entitlement to service connection for a bilateral knee disability is granted. Entitlement to service connection for a low back disability, to include as secondary to a knee disability, is denied. Entitlement to service connection for a chronic sleep disability, to include as secondary to a knee disability, is denied. FINDINGS OF FACT 1. The Veteran’s bilateral knee disability, currently diagnosed as patellofemoral pain syndrome, had its onset during active duty service. 2. A chronic disability of the lumbar spine was demonstrated years after service, is not etiologically related to a disease or injury in service, and was not caused or aggravated by a service-connected disability. 3. The Veteran does not have a chronic sleep disability. CONCLUSIONS OF LAW 1. Service connection for a bilateral knee disability, currently diagnosed as patellofemoral pain syndrome, is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. A chronic lumbar spine disability was not incurred or aggravated during active duty service, its incurrence or aggravation may not be presumed, and it is not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. A chronic sleep disability was not incurred or aggravated during active duty service and is not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to August 1983, from April 1985 to September 1985, and in February 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 relevant disease or an 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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a bilateral knee disability. The evidence establishes that the Veteran’s bilateral knee disability had its onset during active duty service. Service records show multiple episodes of treatment for right and left knee injuries and symptoms during service with diagnoses of bilateral patellofemoral arthralgias and chondromalacia during the Veteran’s second period of active service. Although a chronic knee disability was not identified during the claims period until the February 2014 VA examination, the VA examiner diagnosed bilateral patellofemoral pain syndrome, i.e. the same condition that was present during service. The medical evidence of record demonstrates that the Veteran sought treatment for bilateral knee pain on multiple occasions during throughout military service and was diagnosed by the VA examiner with the same disability. The Board will therefore resolve any doubt in the Veteran’s favor and finds that the bilateral knee disability had its onset during service and service connection is warranted. 2. Entitlement to service connection for a low back disability, to include as secondary to a knee disability. The Veteran contends that service connection is warranted for a low back disability as it was incurred due to heavy lifting and carrying during active service. She testified in May 2018 that she incurred low back strains while performing strenuous activities associated with her active duty as a medical service specialist. In the alternative, the Veteran contends that a low back disability was incurred secondary to the service-connected bilateral knee condition. The questions for the Board are whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or a service-connected disability. The Board concludes that while the Veteran has a current diagnosis of degenerative disc and joint disease, and the type of low back injury she describes is consistent with her active duty as a medical supply specialist, the preponderance of the evidence weighs against finding that the Veteran’s lumbar disability began during service or is otherwise related to an in-service injury or service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Turning first to the Veteran’s contentions regarding direct service connection, the Board notes that service and post-service records do not support the claim. Service records are negative for any findings or complaints related to the Veteran’s low back. In September 1983, the Veteran was found to have incurred an injury to her sacrum related to a fall during training camp, but there are no specific findings related to the low back. She denied experiencing recurrent back pain on an October 1984 Air Force enlistment report of medical history, and the accompanying physical examination showed a normal spine. The Veteran’s spine was also normal at a February 1991 physical examination during her third period of active service. Thus, service records are negative for any evidence of a chronic low back disability. Post-service treatment records show that the Veteran was first treated for low back pain by a private chiropractor in June 1999, more than eight years after her most recent period of active duty service. A September 2000 X-ray and MRI demonstrated degenerative disc disease and mild disc bulges and the Veteran was referred to a private pain consultant in February 2001. At that time, the Veteran reported experiencing a work-related injury in May 2000 with ongoing chronic low back pain. She was diagnosed with mechanical low back pain with a prominent lumbar facet syndrome and secondary sacroiliitis. The absence of any clinical evidence of chronic disability for several years after service is one factor that weighs the evidence against a finding that the Veteran incurred a chronic lumbar spine disability in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board also notes that there is no finding of lumbar spine arthritis until September 2000, almost a decade after the Veteran’s discharge from active duty. As such, the Board cannot conclude that the Veteran manifested an arthritic condition to a compensable degree within a year after her separation from active military service. Thus, service connection for arthritis on a presumptive basis as a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a), 3.309(a). The record also does not contain any competent medical opinions in support of the claim. None of the Veteran’s treating physicians have related the disability to service and the Veteran has not reported incurring any specific injuries to the spine during active duty. As noted above, post-service records show that the Veteran injured her spine at work in May 2000, but the same records are negative for any findings or complaints related to service. There is also no evidence of a link between the Veteran’s low back disability and her service-connected bilateral knee disability. The Veteran was provided a VA examination of her low back in February 2014 and the examiner provided an opinion against secondary service connection. This opinion was based on the nature of the Veteran’s knee disability and specifically the absence of major muscle or nerve damage causing partial or complete paralysis and the lack of shortening of the leg resulting in an altered gait pattern (characterized as a Trendelenburg gait). Without evidence of similarly significant impairment from the knees, the examiner found that it was less likely as not that the Veteran’s back problems were secondary to the service-connected bilateral knee disability. The Board finds that the February 2014 VA examiner’s opinion was based on a full review of the accurate facts in the case and was accompanied by a well-reasoned rationale. It is therefore entitled to significant probative weight. Service connection is also possible on a direct basis for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). However, the Veteran has not reported a history of continuous symptoms since service. Service connection for a chronic disability based on a continuity of a symptoms is therefore not possible. The Board also finds that the Veteran is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as low back pain, but finds that her opinions regarding whether her disability is etiologically related to active duty or a service-connected disability cannot be accepted as competent evidence in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The competent evidence of record is therefore against a nexus between the Veteran’s lumbar spine disability and active duty service. Additionally, the evidence is against service connection for the low back condition as secondary to the service-connected knee disability. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection and it is denied. 3. Entitlement to service connection for a chronic sleep disability, to include as secondary to a knee disability. The Veteran contends that service connection is warranted for a chronic sleep disability. She testified in May 2018 that she could not through the night due to pain associated with her joint conditions. After review of the record, the Board concludes that the Veteran does not have a chronic sleep disability and has not manifested such a disability at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s post-service medical records are negative for diagnoses or findings of a chronic sleep disability. In January 2012, the Veteran was seen at a private sleep clinic with complaints of excessive daytime sleepiness and loud snoring. A nocturnal polysomnogram study was negative for abnormalities. Additional testing was recommended to rule out narcolepsy or other sleep disabilities, but there is no evidence that the Veteran received further sleep testing or that a medical professional has identified any other sleep condition. A VA examiner who physically examined the Veteran and reviewed her history of sleep problems also concluded in February 2014 that she did not meet the criteria for chronic insomnia. The Board has considered the Veteran’s statements that she experiences sleep impairment, but the Board finds that the Veteran lacks the expertise to specifically diagnose herself with a chronic sleep disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Veteran is certainly competent to report the sleep problems she experiences, but the Board finds that she is not competent to attribute these problems to any specific chronic disability. The Board therefore finds that the medical evidence, based on objective testing and including the findings of private and VA examiners, establishes that the Veteran does not have chronic sleep disability. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the preponderance of the evidence is against the claim and it is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel