Citation Nr: 18123786 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 08-29 881A DATE: August 3, 2018 ORDER Service connection for a back disability is denied. Service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran does not have a back disability that is related to her service. 2. The Veteran does not have a left knee disability that was caused by her service, or that was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to June 1987. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Arthritis can be service connected on such a basis. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Scoliosis is “a lateral curvature of the spine.” Guetti v. Derwinski, 3 Vet. App. 94, 95 (1992). 1. Service connection, back disability. The Veteran asserts that her current lumbosacral spine (back) disability is a continuation of the back symptoms that she experienced in service. In July 2011, she asserted that when she was pregnant during service, her son jumped on her stomach, causing her to miscarry. She stated that she has experienced back pain since that time. The Veteran’s service treatment records show the following: In January 1977, the Veteran was treated for lower back pain of unknown etiology. In June 1977, she was treated several times for low back pain, following participation in an aerobics class. The assessments were low back pain, likely with a muscular etiology, low back syndrome, and persistent low back pain. In June 1980, she was treated for middle back pain with no known strain. In March 1981, she was treated three times for lower back pain following exercise. A June 1986 report from a private health care provider shows treatment for a complaint of back pain; the Veteran denied trauma. The diagnosis was lumbar strain. An associated X-ray report notes “slight scoliosis of questionable significance.” A separation examination report is not of record. As for the post-service medical evidence, VA reports show the following: In August 1987, the Veteran was diagnosed with chronic lumbosacral strain, and chronic low back strain; it was noted that, “She has gained a lot of weight since being out of service.” An associated X-ray report for the lumbosacral spine contains an impression of “no significant abnormality.” Beginning in 1992, she began received occasional treatments for back pain, with a notation of a report that she had experienced back symptoms since service. A July 1992 report notes possible rheumatoid arthritis. She was also noted to have an eating disorder. The assessments noted low back pain, and low back strain, with one notation of spasm. A report of VA hospitalization, covering treatment provided between March and April of 1992, shows that the Veteran was treated for drug detoxification and rehabilitation. She was noted to have “no joint deformities and few symptoms.” She reported being told that she once had rheumatoid arthritis, however, her ANA and rheumatoid factor were negative. A November 1992 back X-ray was noted to be “essentially normal.” Beginning in 1994, there are notations of chronic back pain, with a notation of possible spondylolisthesis. A decision of the Social Security Administration (SSA), dated in January 2000, shows that the SSA determined that the Veteran was disabled as of January 1997. She was noted to have severe fibromyalgia, obesity, anemia, depression, and a personality disorder. Supporting medical reports note low back pain, bilateral crepitus of the knees, an acquired psychiatric disorder, and a diminished range of motion in the lumbar spine and knees. A February 2006 report notes low back pain, and that, “this appears to be mechanical in nature.” An associated VA X-ray report notes a complaint of multiple joint pain, and that vertebral body height and alignment appeared normal, with normal intervertebral disc spaces, and a “transitional vertebrae at 6 nonrib bearing lumbar vertebrae, otherwise normal lumbar spine.” A VA back examination report, dated in July 2014, shows that the examiner indicated that the Veteran’s claims file had been reviewed. The examiner concluded that the Veteran’s back disability was not related to her military service, nor was it a continuation of the back pain she experienced therein. The examiner explained that although the Veteran was treated for back pain in service, she was not diagnosed with any lumbosacral condition at that time. X-rays dated in 1986 showed nothing of significance related to the Veteran’s spine. Although there was a diagnosis of chronic lumbosacral strain upon VA examination in August 1987, there was no evidence of functional limitations or symptomatology associated with chronic lumbosacral strain at the time of that examination. The examiner further noted that the diagnosis of lumbosacral degenerative disc disease in January 2002 occurred many years after service and that the diagnosis was most consistent with age-related degenerative changes. Finally, the examiner noted that the Veteran has several risk factors for degenerative joint disease, including, but not limited to, older age, obesity, genetic factors, her gender, and tobacco use. In May 2015, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In March 2016, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Remand. In April 2016, the Board requested VHA medical opinions. See 38 C.F.R. § 20.901 (a). In September 2016, an opinion was received from M.V., M.D., a board-certified orthopedic surgeon. Dr. M.V. indicated that he had reviewed the Veteran’s claims file, and he summarized the Veteran’s relevant medical history. This history included normal lumbosacral X-rays in August 1987. Dr. M.V. stated that no specific injury to the low back was documented that would warrant or be expected to cause ongoing abnormalities, based on evidence-based literature. None of the Veteran’s episodes of lumbar pain would warrant any care beyond 90 days. The presence of low back disorders is essentially ubiquitous in the general population of developed countries. More than 70 percent of the population in developed countries develop low back pain, and 90 percent of those episodes resolve within a few weeks. There is no evidence of any trauma that would be a risk factor. (all citations omitted). In response to the question of whether the Veteran’s currently diagnosed back disability is related to her service, Dr. M.V. stated the following: Within reasonable medical probability and with probability greater than chance, the currently diagnosed back disability of [the Veteran] has no relationship to her service activities or work. She is obviously deconditioned. She is middle-aged. There is no indication that she is doing any type of health maintenance regimen to provide appropriate core strengthening. Thus, the diagnosed back disability with reasonable medical probability has no relationship to her service activities. Dr. M.V. further states that the literature that is evidence-based has clearly shown that the presence of backache is ubiquitous in the population as a whole. There is no basis to assume that a backache has any work relationship or that it would cause disability on a long-term basis. There is no neurological dysfunction documented on any of her records. Thus, there is no evidence that her active duty military service initiated or aggravated her low back dysfunction. This opinion is fully supported by the official disability guidelines, and MD Guidelines, as well as the Guides to the Evaluation of Disease and Injury Causation. The Board finds that the claim must be denied. The Veteran was treated for back pain on a number of occasions during service. However, arthritis of the back is first shown many years after service. In particular, Dr. M.V.’s September 2016 VHA opinion is considered to be highly probative evidence against the claim. The VHA opinion was specifically generated with a view towards resolution of the issue under review, and it shows that Dr. M.V. thoroughly reviewed the Veteran’s claims file, and provided a detailed rationale for his conclusion that the Veteran does not have a back disability that is related to her service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a medical expert’s opinion for its reasons and bases where the expert has fairly considered the medical evidence of record). There is no competent opinion in support of the claim. There is no evidence to show that arthritis of the back was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. 2. Service connection, left knee. The Veteran asserts that her current left knee disability is due to a continuation of left knee symptoms that she experienced in service, or, in the alternative, that it was caused or aggravated by her service-connected right knee disability. Service connection is in effect for degenerative changes of the right knee, and chondromalacia of the right knee, with instability and hyperextension. The Veteran’s service treatment records show that in August 1977, she sought treatment for left knee pain after a soap dish fell on her knee. The diagnosis was left knee chondromalacia. She received additional treatment in October 1977, with an assessment of prepatellar bursitis, and possible chondromalacia. An associated X-ray of the left knee was noted to be negative. In November 1979, the Veteran was treated after being involved in a motor vehicle accident. The Veteran reported no bodily injuries as a result of the incident. A separation examination report is not of record. As for the post-service medical evidence, VA reports show the following: Upon examination in August 1987, the Veteran did not report any left knee symptoms, nor was a left knee disability found. An X-ray report for the bilateral knees, dated in April 1995, was normal. In 1997, the Veteran complained of bilateral knee pain “since basic training in 1976.” The report includes notations of chronic knee pain and OA (osteoarthritis). In July 1999, the Veteran was treated for complaints of bilateral knee pain, and she was noted to have a history of chondromalacia patellae. The assessment was rule out DJD (degenerative joint disease). A December 1999 VA joints examination report notes complaints of bilateral knee pain since basic training in 1976. She reported having received additional knee treatment in 1986, with use of non-steroidal anti-inflammatory medication. It was noted that there was no history of a specific injury. The relevant aspect of the diagnosis noted “possibly some involvement of the left lateral meniscus.” The examiner added that her chronic condition was exacerbated by her obesity, and that there was a lack of evidence for inflammatory arthritis, such as rheumatoid arthritis, as well as degenerative joint disease. In December 2001, X-rays were noted to show that the medial line joint spaces were well-preserved, and that the patellofemoral joint space was moderately narrowed with degenerative spurs early or superior and inferior; bone structure appeared normal. A September 2002 report shows treatment for a complaint of right knee pain. The examiner told the Veteran to continue trying to lose weight to relieve strain on her knee. A VA examination report, dated in December 2003, shows that the impression, based on X-ray findings, noted bilateral knee chondromalacia patella with degenerative joint disease. See also November 2003 report (noting OA (osteoarthritis) of the knees). A January 2004 report notes patellofemoral arthritis of both knees. The Veteran was noted to have lost about 60 pounds in the previous year, and she was encouraged to lose another 50 pounds. A VA examination report, dated in March 2006, shows that X-rays of the knees taken in August 1977 and April 1995 were normal, or showed no radiographic changes. A December 2003 X-ray was noted to show mild degenerative changes. A February 2006 X-ray was noted to show bilateral moderate degenerative arthritis. The examiner concluded that the Veteran’s left knee degenerative joint disease is not caused by, or a result of, her right knee chondromalacia patella and degenerative joint disease, explaining that there is no nexus with which to link these two conditions. Her bilateral knee condition was noted to have been made much worse by her obesity. Overall, there are some notations of an altered gait. See e.g., July 2008 report (noting a wide-based gait, externally rotated hips, and a mildly antalgic gait). However, on other occasions, the Veteran’s gait was noted to be normal, or steady. See e.g., VA examination reports, dated in May 2008, and September 2010 (noting an unremarkable gait, and that there is no functional limitation on standing or walking, and that there were no callosities, breakdown, or abnormal shoe wear pattern that would indicate abnormal weight bearing); VA progress notes, dated in April and November of 2009, January 2010, September 2012 and January 2013. There are also a number of notations of a leg length inequality, to include a finding that the Veteran’s right leg was ½ -inch shorter than her left leg. See e.g., VA reports, dated in April 2003, June and July of 2008 (noting treatment with heel lifts). However, a July 2014 VA knee and lower leg disability benefits questionnaire shows that the examiner concluded, “There is no evidence of significant leg length discrepancy or pathological process leading to flow-through conditions.” A VA examination report, dated in July 2014, shows that the examiner indicated that the Veteran’s claims file had been reviewed. The examiner concluded that the Veteran’s current left knee disability is not related to her military service, or to her service-connected right knee disability. The examiner explained that there was no evidence of a diagnosis of any chronic left knee condition during service. The examiner stated that the weight of available medical literature does not support a finding that the left knee chondromalacia noted in service could lead to the subsequent development of left knee degenerative joint disease, or that right knee chondromalacia could cause left knee degenerative joint disease. The examiner stated that there is no evidence of significant leg length discrepancy or a pathological process that could lead to flow-through conditions (i.e. secondary disabilities from a service-connected disability). The examiner again pointed out that the Veteran has several non-service related risk factors for degenerative joint disease. In May 2015, the Board denied the claim. The Veteran appealed to the Court, and in March 2016, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Remand. In April 2016, the Board requested a VHA medical opinion. See 38 C.F.R. § 20.901 (a). In September 2016, an opinion was received from M.V., M.D., a board-certified orthopedic surgeon. Dr. M.V. indicated that he had reviewed the Veteran’s claims file, and he summarized the Veteran’s relevant medical history. This history included normal bilateral knee X-rays in 1995. Dr. M.V. stated that no specific injury to the knee was documented that would warrant or be expected to cause ongoing abnormalities, based on evidence-based literature. None of the Veteran’s episodes of knee discomfort would warrant any care beyond 90 days. A medical guide was noted to show that arthritis of the knee was a rather ubiquitous condition, and that it there is strong evidence to show that it is associated with increasing risk with age, being overweight or obese, physical trauma (not shown in this case), gender (women are more affected than men). In response to the question of whether or not her currently diagnosed left knee disability is related either directly to her active duty service, or secondary to her service-connected right knee disability, Dr. M.V. states: [T]here is no evidence-based medicine that a right knee chondromalacia would result in a left knee dysfunction or disability. The records are replete with documentation that her range of motion of the left knee was normal. She does have obviously a significant deconditioning problem which is a definite risk factor for development of arthritis. There was no service activity that resulted in a fracture of dislocation of her knee. Dr. M.V. added that within reasonable medical probability, that is, greater than 50 percent probability or greater, that this Veteran’s left knee disability has no relationship to her military service, nor was it aggravated by her military service. This opinion is based on Dr. M.V.’s board-certification in orthopedic surgery, as well as 30 years of experience treating and caring for veterans and the general population. The risk factors for development of knee dysfunction and disability have been discussed. The biggest risk factor for the Veteran is her weight, as well as her age and gender. There is no relationship to her military service. With regard to the question of whether it is at least as likely as not that the Veteran’s left knee disability was caused by her right knee disability, Dr. M.V. stated that there is no literature that would indicate that for a person developing one-sided joint disorder causes the opposite-side joint to break down. This is clearly established in the aspect of people who have actually lost a joint, such as with an amputation. There is no documentation that such a situation accelerates or aggravates the other joint unnecessarily. The only literature that suggests there may be a relationship between a dysfunction of one joint and a subsequent joint is that of a fused joint. However, that is unilateral to that fused joint, and not to the opposite extremity. For example, fusing of the hip will cause increased stress on the knee and/or SI (sacroiliac) joint. Thus, it is not likely at a 50 percent probability or greater, that the Veteran’s left knee disability was caused by or worsened by her right knee dysfunction or disability. With regard to the question of whether it is at least as likely as not that the Veteran’s left knee disability was aggravated by her right knee, Dr. M.V. stated that this was previously addressed. He added that within reasonable medical probability, and greater than a 50 percent probability, that the Veteran’s left knee disability was not aggravated or permanently increased in severity due to her right knee disability. He stated that she “obviously” has all of the predisposing factors for knee arthritis, that is not associated with military service, and which is due to age, gender, and obesity. There also may be genetic factors which have not been discussed or examined in her records. The Board finds that the claim must be denied. The Veteran was treated for left knee symptoms during service in 1977, about nine years prior to separation from service. Left knee arthritis is first shown many years after service, and there is no competent opinion of record in support of the claim on a direct or presumptive basis. In particular, Dr. M.V.’s September 2016 VHA opinion is considered to be highly probative evidence against the claim. The VHA opinion was specifically generated with a view towards resolution of the issue under review, and it shows that Dr. M.V. thoroughly reviewed the Veteran’s claims file, and provided a detailed rationale for his conclusion that the Veteran does not have a left knee disability that is related to her service. Prejean; Neives-Rodriguez; Madden; Wray. Accordingly, service connection on a direct basis is not warranted. There is no evidence to show that arthritis of the left knee was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Veteran also asserts that service connection for her left knee disability is warranted on a secondary basis, as caused or aggravated by her service-connected right knee disability. This claim must also be denied. There is no competent opinion of record in support of the claim. As noted above, the September 2016 VHA opinion was specifically generated with a view towards resolution of this issue. It shows that Dr. M.V. thoroughly reviewed the Veteran’s claims file, and provided a detailed rationale for his conclusion that the Veteran does not have a left knee disability that is related to (caused or aggravated by) her service-connected right knee disability. Id. Accordingly, the Board finds that the preponderance of the evidence is against the claim on a secondary basis, and that the claim must be denied. 38 C.F.R. § 3.310. Conclusion. In reaching these decisions, the Board has considered that the Joint Motion noted that the July 2014 VA examiner did not specifically discuss a number of treatment reports, and that Dr. M.V. similarly did not discuss those reports. The Board has determined that the September 2016 VHA opinions are sufficiently probative for adjudication of the claims. The Court has held that there is no requirement that each and every item of evidence be discussed. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In this case, Dr. M.V. is presumed to be competent to render the requested opinions. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). This includes having the discretion to focus only on the most salient and relevant evidence. Timberlake v. Gober, 14 Vet. App. 122 (2000). His opinions have been discussed, and they are shown to include sufficient reasons and bases for their conclusions. In such a case, VA may only consider independent medical evidence to support its findings and it is not permitted to base decisions on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). With regard to the appellant’s own contentions, 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 issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the presence of back and knee symptoms, the claimed disabilities are not the types of condition that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that specific findings are needed to properly assess and diagnose these disorders, and determine their etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The issues on appeal are based on the contentions that service connection is warranted for a back disability, and a left knee disability. The Veteran’s service treatment reports and the post-service medical records have been discussed. There is no evidence of back or left knee pathology for many years following service, and the Board has determined that the September 2016 VHA medical opinions are highly probative evidence that weigh against the claims. Given the foregoing, the Board finds that the medical evidence outweighs the appellant’s contentions to the effect that she has the claimed conditions due to her service, or due to a service-connected disability. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel