Citation Nr: 20007045 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-13 314 DATE: January 28, 2020 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a left knee condition is denied. FINDINGS OF FACT 1. The Veteran’s low back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s left knee condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1953 to December 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in May 2018 and August 2019 when the Board remanded the issues for further development. There has been substantial compliance with the remand orders and the Board may therefore proceed with a determination of the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). The Board also notes that on the June 2019 imaging study for the Veteran’s back condition, a finding of a possible abdominal aortic aneurysm was found. The Veteran expressed in a September 2019 correspondence if there was any relation to his fall in 1955 and the aneurysm. In an August 2019 letter to the Veteran from the VAMC, the physician noted that the aneurysm is weakness in the wall of the blood vessel which causes it to enlarge. If the Veteran wishes to seek service connection for the abdominal aortic aneurysm, he is invited to submit a claim to his local RO. Service connection for a low back condition and a left knee condition Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to a “chronic” disease listed under 38 C.F.R. § 3.309(a), such as arthritis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). As both the back condition and left knee condition are largely based on similar facts and arguments, they will be discussed together, unless otherwise specified. The question before the Board is whether there is a nexus between his claimed disorders and the in-service disease or injury. In this regard, the Veteran asserts that his low back condition and left knee condition are proximately caused by his military service. He specifically refers to several incidents during service in which he hurt his back and left knee, to include a fall from twenty-feet, driving on jungle roads, hurting his knee during an obstacle course, and his vehicle falling into a ditch and rolling over. See April 2018 Board hearing testimony at pgs. 10-15. At the outset, the Board notes that the record shows that the Veteran's service treatment records (STRs) are fire-related. Specifically, an April 2013 Personnel Information Exchange System (PIES) reply indicated that the records are fire-related and that no service treatment records and no Surgeon General's Office (SGO) records were available. In July 2013, a PIES response indicated that no morning reports can be indexed based on information furnished and complete organization information is required to conduct the search. A December 2013 PIES response showed that search for the unit was not found. Under such circumstances, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board's analysis of the claims is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In March 2014, a RO employee contacted the Veteran regarding his Notice of Disagreement. The Veteran stated in the telephone conversation that he does not have any service treatment records and that even if they were available, they would not show injuries in service, since he was not seen by medical personnel in service. See March 2014 Report of General Information. As the VA has a heightened obligation to evaluate and discuss all the evidence that may be favorable to the Veteran, the Veteran’s statements regarding his in-service incidents and symptoms are accepted as both competent and credible. The Veteran is competent to report his in-service incidents and subsequent symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994) The Veteran was afforded a VA examination for both his back and left knee conditions in June 2019. The VA examiner noted that the Veteran’s claim files could not be reviewed despite multiple attempts due to problems with the reader. The Veteran reported that he believed his back pain was caused by a 25-foot fall due to an unsecured hook, in either May or June 1955 while training. He stated that he landed on his feet and was put on light duty. He was not evaluated by a doctor during service and his condition worsened over time. The VA examiner opined that the Veteran’s diagnosis of a low back condition is less likely than not caused during service and that there no documented evidence of continuity of symptoms from service to the present. He stated that the evidence does not provide a nexus of ongoing condition over the decades following discharge from active duty. As for the left knee condition, the Veteran stated at the examination that he twisted his knee during basic training in 1954 while doing an obstacle course and was given a hinge brace. He reported discomfort in walking and apprehension of the knee giving out while walking. He stated that he did not see a doctor and did not receive treatment. The VA examiner opined that the Veteran’s left knee condition is less likely than not incurred in or caused during service. He provided rationale that there was no documented evidence of continuity of symptoms from service to the present. The evidence does not provide a nexus of ongoing condition over the decades following discharge from active duty. The August 2019 Board decision found that the June 2019 VA medical opinion was inadequate as the May 2018 remand instructions were not substantially complied with. The Board found that because the VA examiner was unable to review the claims file and did not discuss the Veteran’s jeep roll over incident, his duties as a courier driving over rough terrain and other relevant lay statements, a remand was required to address these deficiencies. In August 2019, a VA addendum examination was obtained. It was noted that the previous VA examiner who provided the June 2019 VA examination and medical opinion was out of the country for an extended period and hence, the addendum medical opinion was written by a different VA examiner. The August 2019 VA examiner indicated that she reviewed all the available records to include the Veteran claims file and VA treatment records prior to rendering the medical opinion. The August 2019 VA examiner stated that the Veteran’s back condition is diagnosed as lumbar spine degenerative arthritis, lumbar spine spondylolisthesis and lumbar spine stenosis per a June 2019 imaging study. She stated that there were no back diagnoses prior to this date. The VA examiner also provided a diagnosis of degenerative arthritis of the left knee per the June 2019 imaging study. There was no left knee diagnosis prior to this date and no imaging studies prior to this date. She concluded that the Veteran’s lumbar spine degenerative arthritis, spondylolisthesis, and stenosis less as well as degenerative arthritis of the left knee less likely than not had their onset in service and are less likely than not related to any injury or disease that occurred in service. She stated that the Veteran was diagnosed with these conditions sixty-four years after separation from active duty service and at the age of eighty-seven. She explained that degenerative arthritis of the lumbar spine and degenerative arthritis of the knee is a common condition of aging. She cited to UptoDate Risk Factors for and Possible Causes of Osteoarthritis from April 2013, which stated that advanced age is one of the strongest risk factors associated with osteoarthritis. The National Health and Nutrition Examination Survey found the prevalence of this disease to be less than 0.1 percent in those aged twenty-five to thirty-four years old versus a rate of over 80 percent in people over age fifty-five. Additionally, she stated that spondylolisthesis and stenosis are a result of the bony changes of the Veteran’s degenerative arthritis of the back. The VA examiner was also asked whether any of the incidents the Veteran described, alone or in combination, caused of the Veteran’s back and knee conditions. She first addressed the Veteran’s report that as a courier in service, he drove approximately seventy-five miles a day on extremely rough jungle roads. She acknowledged that diving on jungle roads can cause stressors to the back and knee. However, this remote stressor is unlikely to have caused degenerative arthritis and its sequalae spondylolisthesis and stenosis. This stressor is not a specific risk factor for the development of lumbar spine degenerative arthritis, spondylosis, and stenosis and his left knee degenerative arthritis at the age of eighty-seven and these conditions are a common condition of aging. Next, the VA examiner addressed the Veteran’s report that during service, he was involved in an accident where the vehicle rolled over and went into a ditch. She responded that it is not clear that there was a specific injury or injuries that occurred as a result of this roll-over accident. The Veteran was diagnosed with lumbar spine degenerative arthritis, spondylosis, and stenosis and left knee degenerative arthritis in 2019 and there is no evidence that these conditions existed prior to 2019. These conditions are common conditions of aging. The Veteran also reported an incident where he fell at least twenty feet in the air and landed on his feet with a very heavy jolt. The VA examiner explained that a fall of twenty feet landing on one’s feet could understandably cause a heavy jolt with forces distributed through the lower extremities and the vertebral column. It would also potentially cause multiple fractures in the lower extremities and back. There is no documentation that this fall resulted in injuries requiring prolonged medical attention. Thus, it is not clear what sort of specific injuries occurred from this fall. The VA examiner once again stated that the Veteran’s lumbar spine degenerative arthritis, spondylosis and stenosis and his left knee degenerative arthritis are common conditions of aging and did not result acutely from a fall. With reference specifically to the left knee, the VA examiner also addressed the incident where the Veteran reported a left knee strain during service on the obstacle course, which resulted in a lot of pain and subsequently had a hinge brace for the knee. In response to this incident that the Veteran reported, the VA examiner stated that a left knee strain involves the soft tissues and potentially the ligaments of the knee. A knee strain would not involve the bones as degenerative arthritis does. These injuries are not risk factors for the development of left knee degenerative arthritis and is instead a common condition of aging. Additionally, the VA examiner was asked to address the Veteran’s belief that he sustained his current back and left knee injuries while in service. The VA examiner stated that the Veteran’s current conditions are common conditions of aging. They occur commonly in the general population whether or not they have participated in active duty service and whether or not they have sustained injuries in their lifetime. The Veteran also reported that he has not had any extreme physical contact over the last sixty-five plus years and has had no incident since service that would hurt his back. The VA examiner rationalized that the Veteran’s conditions of lumbar spine degenerative arthritis, spondylosis and stenosis and his left knee degenerative arthritis occur commonly in the general population whether or not they have had any extreme physical contact or incidents that would hurt their back over a sixty-five-year period. The VA examiner was also asked to address the Veteran’s report that after the twenty-foot fall, the medic joked that he should have his trouser hem reduced. She explained that the reason to have the “trouser hem reduced” would be because of a decrease in the length of one’s legs. This would mean the Veteran had sustained injuries severe enough to cause leg length shortening. Such injuries would include fractures of such significance that they would require surgical correction. She stated that there is no evidence that the Veteran required surgical intervention after his twenty-foot fall. Finally, the VA examiner was asked to comment on the Veteran’s report that he did not see a doctor for many years after service because he did not have the means to do so. The Veteran stated in a February 2019 correspondence that he is a man of modest income through-out his lifetime trying to be frugal and living within my income. He indicated that he did not have the option to consult a medical practitioner for his knee or back injuries sustained during the Army in the 1950’s. In response to the Veteran’s statement, the VA examiner stated that medical records indicate the Veteran has a history of hypothyroidism for which he is taking Levothroid for two to three years and coronary artery disease for which he had a stent placed in 2001 and is on Metoprolol. He also has a past surgical history of a hernia repair in 1948 and hemorrhoidectomy in 1980. At the time of this primary care physician appointment in August 2019 at Albuquerque VAMC, the Veteran reported previous medical care at Presbyterian. Given documentation of care at Presbyterian and these medical interventions, it is not clear why the Veteran reports that he has never had “the option to consult a medical practitioner re my knee and/or back injuries.” The VA examiner confirmed that she reviewed all available relevant lay and medical evidence considered in the above clarifications. The Board finds that the August 2019 VA examiner’s opinion is highly 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). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or that she misstated any relevant fact. Indeed, the examiner addressed the Veteran’s reports of his injuries in service and other relevant lay statements and fully supported her conclusions with specific citation to the record. Furthermore, the Board finds that presumptive service connection on the basis of presumptive service connection is not warranted. The Veteran’s lumbar spine degenerative arthritis and left knee degenerative arthritis is shown to be the result of a known clinical diagnosis, arthritis due to aging, and there is no evidence suggesting that arthritis of these joints is etiologically related to active service or was manifested within one year of separation. Moreover, presumptive service connection for either condition on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. § 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Ultimately, the Board finds that there is no dispute that the first two elements of service connection are met. Regarding the first element, the Veteran has current disabilities of the low back and left knee, specifically arthritis. Regarding the second element, there is no dispute that the Veteran was involved in several in-service incidents, even though service treatment records are unavailable and do not specifically reference such incidents. Unfortunately, service connection must be denied because the weight of the evidence is against the third element, a nexus between the current disabilities and service. Consideration has also been given to the arguments made by the Veteran, that he has a current disability that is related to military service. The Board acknowledges that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). While lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, an opinion as to the cause of the Veteran’s back and left knee conditions, falls outside the realm of common knowledge of a lay person. The Veteran does not have any actual specialized knowledge of medicine in general or orthopedics more particularly, and that he is merely speculating as to whether he has such a relationship. As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Veteran’s statements are lacking in probative value, and are far outweighed by other evidence of record showing no nexus to injuries or diseases in military service. In this regard, the Board gives more probative weight to the August 2019 VA examiner’s opinion. The Board is sympathetic to Veteran's reported symptomatology; however, for the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back condition and left knee condition, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate Counsel 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.