Citation Nr: 20009997 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 16-61 770 DATE: February 6, 2020 ORDER Service connection for a low back disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. FINDINGS OF FACTS 1. The weight of the competent and credible evidence of record is against a finding that the degenerative disc disease of the Veteran’s lumbar spine began during his military service, was caused by his service, had onset within a year of his service, or has been continuous since service 2. The weight of the competent and credible evidence of record is against a finding that the Veteran’s right knee disability began during his military service, was caused by his service, had onset within a year of his service, or has been continuous since service. 3. The weight of the competent and credible evidence of record is against a finding that the Veteran’s left knee disability began during his military service, was caused by his service, had onset within a year of his service, or has been continuous since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, to include degenerative disc disease, are not met. 38 U.S.C.§§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for a service connection for a right knee disability have not been met. 38 U.S.C.§§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for a service connection for a left knee disability have not been met. 38 U.S.C.§§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to November 2000. The Board notes that the Veteran served in the Southwest Theater of Operations between September 1990 and March 1991. He was scheduled to testify before a Veterans Law Judge at an April 2017 Board hearing. However, the Veteran contacted VA that same month to cancel his requested Board hearing. Accordingly, his hearing request is considered to have been withdrawn. This matter is on appeal from a January 2015 rating decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty. 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 disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if they manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability due to a qualifying chronic disability of a Veteran, such as in the instant case, who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4 not later than December 31, 2016, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.§ 1117; 38 C.F.R. § 3.317 (a)(1). A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i). In this case, because the Veteran has clear clinical diagnoses of a back condition as well as knee disorders, any presumptions that are available under 38 C.F.R. § 3.317 are not available to the Veteran in this case. Lumbar Spine Disability Upon entry into service, the Veteran did not demonstrate any complaints relating to any back pain. His service treatment records were silent for complaints, treatment, or diagnosis relating to his back. In his August 2000 report of medical history, the Veteran specifically denied any recurrent back pain or back injury. Moreover, his separation physical in August 2000 revealed no clinical abnormalities relating to a spinal disorder. Fourteen years post service, the Veteran was presented with back pain, which was identified as myofascial lumbar pain and lumbar degenerative disc and joint disease. At his June 2015 VA examination, he reported that he first experienced back pain in 1985 or 1986 when he was doing sit ups on the asphalt during physical training. This, however, was not shown in his service treatment records. He indicated that he developed a cyst, which was later removed. Subsequently, he experienced pain over his lumbar area, which can be alleviated by movement and stretches. On physical examination, the Veteran demonstrated a range of motion within normal limits. However, he had localized tenderness in his thoracolumbar spine. Imaging tests revealed scattered degenerative changes throughout the lumbar spine with multilevel degenerative facet hypertrophy. Mild degenerative disc space narrowing at L4-L5. Upon review of the record, the VA examiner concluded that the Veteran’s current lumbar spine disorder was less likely than not to be related to an injury in service or is otherwise related to service in the Southwest Theater of Operations. Rather, the examiner concluded that the Veteran’s back disability was due to mechanical forces/stress. The Board notes that the Veteran reported a cyst removal from the lumbar region. However, the June 2015 VA examiner found no scar in the lumbar region associated with a surgical cyst removal. Contrary to the Veteran’s report, VA treatment records documented a cyst in his thyroid, rather than the lumbar region. The probative medical evidence of record does not support a conclusion of a nexus between the Veteran’s back disability and his service. The objective medical evidence does not show that the Veteran had any back pain or back injury in service. The Veteran specifically denied any back pain in service at his separation examination in August 2000. The first indication of a back condition did not manifest for approximately fourteen years after his separation from service. The Board observes that the Veteran has not presented any non-medical evidence, such has buddy statements corroborating his history of back problems since his separation from service. He has not provided any favorable medical opinion linking his claimed disorder to his service. Therefore, the Board must rely on the VA medical opinion which found no nexus between the Veteran’s service and his current back disorder. This conclusion, the absence of findings of an abnormal back pathology in service, along with the passage of time between the Veteran’s separation and his first diagnosed degenerative spinal condition, all weigh against the Veteran’s service connection claim. While service connection may be granted for diseases such as arthritis under 38 C.F.R. § 3.309 (a), the disease must have manifested within one year after separation from service. In this case, there is no evidence that indicate complaints of back pain within that year following separation from service. Thus, service connection for a low back disability, to include degenerative joint disease of the lumbar spine, is not warranted. In reaching this decision, the Board acknowledges that, while the Veteran is competent to report injury and symptoms, he is not competent to link his current low back disorder to service, as he lacks the requisite medical expertise. While a layperson is competent to report observable symptomology and diagnose a simple medical condition, the specific issue in this case falls outside the realm of a layperson’s knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board assigns them no weight. Accordingly, service connection for a low back disability is not warranted and the claim is denied. Right and Left Knee Disabilities It is the Veteran’s contention that he developed a left and right knee disability as a result of his military service. Service treatment records are silent for any treatment or diagnosis relating to a knee condition. Upon separation, the Veteran complained of a trick knee on his 2000 August Report of Medical History. However, his separation physical revealed no clinical abnormalities in his lower extremities. Within a year after service, the Veteran’s medical treatment records did not reflect continued complaints of the previously reported ‘trick knee.’ In fact, the Veteran did not demonstrate any clinical problems with his knees until approximately 2004 when he was diagnosed with knee pain syndrome of the right side. In 2006, the same diagnosis was rendered for the left knee. He was diagnosed with degenerative arthritis of the bilateral knees in 2014. At his November 2014 VA examination, the Veteran reported developing pain in both knees while in service in 1997. He reported that he has always been active in sports and even though he had no specific injury to either knee, he began to notice pain in both knees during physical training. He denied seeking medical care during service. He reported that in 2004, his left knee buckled while bowling and when he used the stairs. He also complained of right knee pain in 2006. However, he was never seen for his symptoms. The VA examiner noted that after leaving service, the Veteran had worked several jobs doing electrical and maintenance work involving physical activity. From November 2013 to August 2014, he worked as a cashier requiring 6 hours on his feet at a time. He has not worked since August 2014 by choice. He stated that he can walk and sit without limits. But he was only able to climb one flight of stairs, and only able to lift 50 lbs. Upon physical evaluation, the Veteran demonstrated abnormal range of motion. Diagnostic testing revealed mild degenerative arthritis in both knees with minimal bilateral medial compartment narrowing. No acute fracture or dislocation in either knee. Right knee joint effusion and/or synovitis. No appreciable left knee joint effusion. Tiny osteocartilaginous loose bodies both knee joint posteriorly. Tiny enthesophytes about the superior poles of the patella. In conclusion, the VA examiner found that the Veteran’s bilateral knee pain syndrome and mild degenerative joint disease is less likely related to his service, including his active duty in the Southwest Theater of Operations. The Veteran has clear diagnoses that are more likely due to biomechanical factors, rather than exposure to environmental hazards. The Veteran underwent physical therapy in December 2016 for his right knee to improve his gait and balance after a fall the prior month. The physical therapist noted that the Veteran’s knee pain was consistent with distal right adductor strain as the Veteran has TTP and pain with resisted hip adduction. Upon review of the record, the Board finds that service connection for both a left and right knee disability is not warranted. The Board acknowledges the Veteran’s report of a trick knee at his August 2000 separation examination. A physical examination however, revealed no clinical findings of a left or right knee disorder. Despite a lack of diagnosis, the Board has considered whether the Veteran has presented a continuity of symptomatology but finds that he does not done so. He did not demonstrate a knee problem until at least four years after his separation from service, which interrupts the continuity of his symptoms. While the passage of time alone is not dispositive, it is a factor that weights against the Veteran’s claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The only objective medical evidence that addresses a nexus is the November 2014 VA examination, which found no link between the Veteran’s bilateral knee disability and his military service. There has been no evidence to the contrary. The November 2014 negative opinion coupled with the absence of any diagnosed knee condition in service is against a finding that the Veteran’s disabilities of the knees had onset in service. Given the Veteran’s own statements, the Board finds that it is likely that the Veteran’s left and right knee disabilities, which developed years after service, are associated with his post service employment and recreational activities. To the extent that the Veteran believes that his left and right knee disability are related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, as to the etiology of a right knee disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s knees is related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. Finally, without objective evidence showing that the Veteran developed his degenerative disease of the knees within one year of service, service connection cannot be granted under 38 C.F.R. § 3.309 (a). Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for left and right knee disorders is denied. The Board is deeply appreciative of the Veteran’s long and dedicated service to his country. Unfortunately, his claims file currently lacks a medical opinion of record linking any of his claimed knee and back disabilities to his military service. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.