Citation Nr: 20006563 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 14-31 017 DATE: January 27, 2020 ORDER Entitlement to service connection for degenerative arthritis of the spine is denied. Entitlement to service connection for a bilateral knee disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a lumbar spine or bilateral knee disability, to include arthritis, began during active service, or is otherwise related to an in-service injury, event or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the spine are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1980 to June 1980 and from November 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and July 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In March 2019, the Board remanded the claim for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Notably, laypersons are competent to report objective signs of illness. While the Board acknowledges the Veteran’s complaints of back and knee pain since serving in the Gulf War, such symptoms have been attributed to the degenerative disc disease, degenerative joint disease (arthritis), and bilateral knee strain all of which are known clinical diagnoses. Thus, service connection on the basis of 38 C.F.R. § 3.317 is not warranted in this case. The general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a disease for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service-connected on a direct or secondary basis. The opinion further noted that obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would not have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). 1. Entitlement to service connection for degenerative arthritis of the spine is denied The Veteran contends that her degenerative arthritis of the spine is attributable to in-service injury or illness. Specifically, she contends that her disability is due to carrying duffle bags and rucksacks, and sleeping inside of tents during service. See August 2017 Board hearing transcript. The question for the Board is 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, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine, and evidence includes credible reports of carrying duffle bags and rucksacks, and sleeping inside of tents and/or cart, the preponderance of the evidence weighs against the claim. Service treatment records are silent to any complaints of or treatment for back pain during a period of active duty. Reserve records contain reports of medical examinations dated in February 1980, September 1981, November 1984, August 1989, and November 1993, wherein the Veteran’s spine was evaluated and found to be normal. The Veteran signed medical certificates in October 1986, July 1990, March 1992, March 1993, June 1994, May 1995, May 1996, and certified that she does not have any medical problems to her knowledge. In February 1995, a VA treatment record shows a complaint of low back pain with no history of injury or previous low back pain. The assessment was “low back pain - probably functional.” In a June 1998 report of medical history, recurrent back pain was noted. In March 2004, she visited a private provider with a complaint of lower back pain that reportedly started in the evening of March 8, 2004, when she leaned over a car seat and felt a pull in her lower back. She reported a remote history of back pain about 20 years ago, with no long-term residual effects. The Veteran was assessed with low back pain with paresthesias into the legs with muscle spasm. X-ray showed decreased disk space at L5-S1. Between 2004 and 2018, medical records reflect recurrent complaints of back pain and related treatment. In June 2018, the Veteran was afforded a contract examination. The Veteran reported that her back condition began in Saudi Arabia when she developed pain in her lumbar spine with no known injury. She was diagnosed with degenerative arthritis of the spine. The examiner opined that the Veteran’s back is less likely than not incurred in or related to service. The rationale was that although the Veteran claimed her pain started in 1991, she did not see her primary care physician for it. The examiner added that the Veteran did not indicate any problems on a periodic exam in 1993 and a medical certificate she signed in 1995. In August 2019, another VA medical opinion was obtained. The examiner opined that the Veteran has a diagnosis of degenerative arthritis of the lumbar spine which less likely than not had its onset in service or was otherwise related to service, to specifically include as a result of the Veteran’s credible reports of carrying duffle bags and rucksacks and sleeping inside of tents and/or cart. The rationale was that evidence of record did not show any back injuries, or diagnoses or treatments of back complaints during periods of active duty or within a year of separation from active duty. The examiner noted that the earliest complaint of back pain was several years after discharge from active duty. The examiner acknowledged the Veteran’s credible reports of carrying duffel bags and rucksacks and sleeping inside of tents and/or carts; however, the evidence did not support that these events had caused any trauma to her back to substantiate the development of degenerative arthritis. The examiner added that studies show degenerative arthritis development is caused by aging, injury, obesity, genetics, gender, and anatomic factors such as joint shape. The examiner noted that the Veteran had long history of obesity based on BMI measurements showing overweight status in 1995 and BMI over 30 since March 2005. The August 2019 VA opinion establishes that the Veteran’s degenerative arthritis of the spine is not at least as likely as not related to an in-service injury, event, or disease. The examiner’s opinion and rationale are probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of lower back pain during active duty service, she is not competent to determine that these symptoms were manifestations of degenerative arthritis of the spine or relate her current lumbar spine condition to activities during active duty many years ago. The issue is medically complex, as it requires knowledge of internal physiological processes and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In December 2019, the Veteran’s representative generally asserted that obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis. Contrary to any such assertion, the Veteran has not demonstrated that a service-connected disability caused her to become obese; that obesity was a substantial factor in causing a secondary lumbar spine disability (as opposed to merely being one of many factors noted by the August 2019 VA examiner); and her lumbar spine disability would not have occurred but for the obesity. Finally, degenerative arthritis of the spine, as a chronic disease, was not shown as such in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s initial diagnosis of degenerative arthritis was not until many years after service. See Dr. D.F. record dated in March 2004. To the extent that the Veteran asserts she experienced back pain in service and afterwards, and to the extent that such contentions are credible, she is not competent to determine that such was a manifestation of arthritis. As such, entitlement to service connection for degenerative arthritis of the spine on a presumptive basis is not warranted. As such, service connection for degenerative arthritis of the spine may not be presumed, or found to have onset in service based on chronicity and continuity is not warranted. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. As the preponderance of the evidence is against the claim for service connection for degenerative arthritis of the spine, there is no doubt to be resolved. Service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for a bilateral knee disorder, claimed as fluid in the knees, is denied The Veteran contends that her bilateral knee disorder is attributable to repeated kneeling inside of bunkers during training exercises in service. See August 2017 Board hearing transcript. The question for the Board is 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, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral knee degenerative joint disease (DJD) and knee strain, and evidence includes credible reports of repeatedly kneeling inside of bunkers during training exercises, the preponderance of the evidence weighs against the claim. Service treatment records are silent to any complaints of or treatment related to the knees during a period of active duty. Reserve records contain reports of medical examinations dated in February 1980, September 1981, November 1984, August 1989, and November 1993, the Veteran’s lower extremities was evaluated as normal. In a report of medical history dated in September 1985, the Veteran reported she was in ‘good health’ without swollen or painful joints. The Veteran signed medical certificates in October 1986, July 1990, March 1992, March 1993, June 1994, May 1995, May 1996, and certified that she does not have any medical problems to her knowledge. In a VA treatment dated in April 1997, mild degenerative change in the right knee and a small joint effusion was noted. From 1997 forward, there is evidence of complaints and medical treatment for the knees. The Veteran was afforded a VA examination in June 2012. The Veteran reported knee pain, hurting, aching, and intermittent swelling since military service. The Veteran reported that she was told she had rheumatoid arthritis in the 1990s, but had not received any treatment for it since. X-ray imaging of the knees confirmed diagnosis of DJD of bilateral knees. At the August 2017 Board hearing, the Veteran reported that during service, she had to get in the bunkers and kneel down and on several occasions, where her knees were swollen up and had to go to the clinic and have fluid drawn from her knees. In June 2018 , the Veteran was afforded a contract exam. The Veteran reported her knee condition began in 1990 in Saudi Arabia when she had to kneel in a bunker for a long period of time. The Veteran was diagnosed with knee joint osteoarthritis in the right knee and knee strain in both knees. The examiner opined that it is less likely than not that her right knee problem started in the military. The rationale was, although the Veteran reported that her knee pain started when she was sitting all curled up in bunkers, the Veteran did not see her primary care physician for it, and she did not indicate any problems on a periodic exam in 1993 and a medical certificate she signed in 1995. In a June 2018 addendum, the VA examiner indicated that he has no evidence of arthritis within one year of discharge from active duty. In August 2019, another VA medical opinion was obtained. The examiner opined that the Veteran has a diagnosis of bilateral knee strain and bilateral knee degenerative arthritis, which less likely as not had onset in service or were otherwise related to service, to specifically include as a result of the Veteran’s credible reports of repeatedly kneeling down inside of bunkers during training exercises. The rationale was, there was no record of any knee trauma, complaints, or treatment during her periods of active duty or within a year of active duty, and repeated kneeling inside the bunkers did not provide an etiology for the development of bilateral knee degenerative arthritis. The examiner further explained that studies show that degenerative arthritis development is caused by aging, injury, obesity, genetics, gender, and anatomic factors such as joint shape. As pertinent to this case, the examiner indicated that the Veteran has a longstanding history of obesity, based on BMI measurements since 1995, showing she was overweight. The examiner noted that the Veteran’s longstanding history of obesity, age, gender, etc., could cause the development of arthritis. The August 2019 VA opinion establish that the Veteran’s DJD of the knees is not at least as likely as not related to an in-service injury, event, or disease. The examiner’s opinion and rationale are probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of knee pain during active duty service, she is not competent to relate her current bilateral knee condition to activities during active duty many years ago. The issue is medically complex, as it requires knowledge of internal physiological processes and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In December 2019, the Veteran’s representative generally asserted that obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis. Contrary to any such assertion, the Veteran has not demonstrated that a service-connected disability caused her to become obese; that obesity was a substantial factor in causing a secondary bilateral knee disability (as opposed to merely being one of many factors noted by the August 2019 VA examiner); and her bilateral knee disability would not have occurred but for the obesity. Finally, DJD of the bilateral knees, as a chronic disease, was not shown as such in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s initial diagnosis of degenerative arthritis was not until many years after service. To the extent that the Veteran asserts she experienced knee pain in service and afterwards, and to the extent that such contentions are credible, she is not competent to determine that such was a manifestation of arthritis. As such, service connection for DJD of the knees may not be presumed, or found to have onset in service based on chronicity and continuity is not warranted. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. (Continued on the next page)   The preponderance of the evidence is against the claim and therefore, the benefit-of-the-doubt doctrine is not for application. Service connection for a bilateral knee disorder is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.