Citation Nr: 20028083 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 16-24 890A DATE: April 22, 2020 ORDER Service connection for a right knee disability is denied. Service connection for a low back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a chronic right knee disability had its onset during active service; or arthritis manifested to a compensable degree within one year after service or was noted in service with continuity of symptomatology since service; or that disability is otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s current low back disability began during active service; or arthritis manifested to a compensable degree within one year after service or was noted in service with continuity of symptomatology since service; or is otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability 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 service connection for low back disability 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 FOR AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to June 1973, and from November 1973 to October 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In November 2019, the Board remanded the appeal. During remand status, a December 2019 rating decision granted service connection for unspecified personality disorder, antisocial/paranoid traits (claimed as PTSD and major depressive disorder). This constitutes a full award of the benefits sought on appeal with respect to this issue. As such, there is no case or controversy for the Board to adjudicate with respect to the original claim of entitlement to service connection for an acquired psychiatric disorder. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Service Connection Compensation may be awarded for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a right knee disability. The Veteran contends that he has right knee disability caused by an incident during training when the wind blew him into rocks and caused him to hurt his knee. See Hearing Transcript (June 2019). He stated that he has had ongoing symptoms of right knee pain since service. Id. The Board concludes that the preponderance of the evidence is against finding that a chronic right knee disability had its onset during active service; or that arthritis manifested to a compensable degree within one year after service or was noted in service with continuity of symptomatology since service; or that right knee disability is otherwise etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The Veteran’s service treatment records (STRs) reflect that the Veteran was seen at an Aid Station in July 1972 after he was knocked down by an exploding tire ring. There were no documented complaints or findings for abnormal pathology of the right knee at that time. In October 1972, the Veteran reported pain when flexing the right knee. At that time, the Veteran complained of loss of range of motion in the right knee as a result of trauma. X-rays at that time were negative, flexion was normal, there was no abnormality found other than mild stiffness, and the Veteran was advised in exercises for full range of motion. On November 4, 1972, the Veteran presented with a right knee laceration incurred while playing football and falling on a rock. The cut was cleaned, 2 days light duty assigned, and he was to return the next day for a dressing change and further evaluation. Subsequently, in November 1972, the Veteran had right knee dressing change and suture removal. There were no subsequent complaints or abnormal findings for the right knee. His June 1973 service separation examination (first period of service) reflects normal clinical evaluation of the lower extremities. Thereafter, in August 1973, the Veteran filed a VA claim for right knee disability that he indicated began in August 1972. The RO denied the claim because, while he had a laceration incurred while playing football and fell on a rock, the injury healed completely without any residual disability. The Veteran re-enlisted for a second period of active duty. His November 1973 service enlistment examination reflects normal clinical evaluation of the lower extremities. Although scar on abdomen was noted, there was no notation of right knee scar. The report of medical history, dated in November 1973, reflects no knee complaints, and the Veteran denied swollen or painful joints; broken bones; arthritis; bone, joint, or other deformity; and “trick or locked knee. His October 1974 service separation examination reflects normal clinical evaluation of the lower extremities, and the Veteran reported that “to the best of my knowledge I am in the best of health.” Medical records from the Georgia Department of Corrections dated from 1996 to 1998 reflect no knee complaints and show multiple entries for lower extremities’ strength and range of motion within normal limits. In fact, there are no documented complaints or findings for abnormal pathology of the right knee disability intervening the Veteran’s service separation in October 1972 and his filing of a May 2003 VA disability application for the right knee. At this time, he contended that it began in around the Fall of 1971. He detailed that he was “in an explosion in Okinawa which threw me against a 5 ton truck with wench on front of it. Wind during Typhon [sic] threw me into some large rocks. This was Typhon [sic] Rita.” June 2003 VA treatment records reflect that the Veteran reported radiating pain from his back into his knee, and right knee weakness and buckling. By history, he was thrown against a truck during an explosion in service and no assessment was made at that time because the focus was on complaints involving the back. It was noted that the Veteran was a construction worker, but not working for the preceding year. A June 2007 VA examination for nonservice-connected pension benefits reflects that the Veteran reported multiple medical problems. By history, the Veteran had had a right thigh gunshot wound in July 2005, resulting in a pin surgically placed from his hip to his knee, and pain from knee to buttock. At that time, the Veteran expressed his belief that he developed knee arthritis due to his many years of work in construction. A September 2007 VA social worker note reflects that the Veteran was in the home remodelling and repair business, and was shot; the Veteran reported he thinks he has a muscle tear that developed arthritis and bone fractures so he can no longer work. A December 2007 VA treatment note reflects complaints of right hip pain and bilateral knee pain. The assessment was likely arthritis, but it was noted that x-rays had not been reviewed (“will check xrays”). A June 2008 VA treatment note reflects that the Veteran was referred to physical therapy for hip and knee pain. A December 2009 VA treatment record shows that the Veteran was seen for pain of hip, shoulders, knees and ankles. It was noted generally that the Veteran has arthritis—the record shows x-ray findings for arthritis of shoulders, left wrist, lumbar spine and right hip. A May 2010 VA treatment record shows that the Veteran worked in construction industry for 35 years until he retired in 2005. A March 2011 VA treatment note shows that x-ray of hips and knees were stable of prior injury and surgery, referencing obliquely the Veteran’s gunshot injury of the right leg/femur. A December 2011 VA treatment note shows complaint of knee pain for one month. An August 2014 VA treatment note shows reports of right knee pain after a bus accident, after which the Veteran requested to wear a brace. A November 2014 private treatment record shows that the Veteran’s prior medical history included knee arthritis. A December 2014 private treatment note also shows that knee pain is likely due to arthritis. A December 2019 VA examination reflects a diagnosis for resolved right knee laceration, resolved. The Veteran reported that he developed a right knee disability around the same time as he injured his back while serving in Okinawa when “the wind came and threw me over to a rock.” He stated that he was stitched up. He stated that he started to see someone in 2000s when his pain increased. The Veteran denied flare-ups. Examination of the right knee showed normal range of motion without pain on motion; no pain with weight bearing; no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; no objective evidence of crepitus; and no joint instability. The Veteran had normal strength of the right knee and no muscle atrophy. Imaging studies were performed and there was no degenerative or traumatic arthritis shown. The examiner indicated that the right knee had no functional impact on the Veteran’s ability to perform occupational tasks. The examiner commented that based on in-person examination with the Veteran it appeared that his right thigh and right hip are painful due to an old gunshot wound status post-surgery. The Veteran walked with a cane. A December 2019 VA medical opinion reflects that the Veteran did not have any abnormal knee pathology, besides a healed old scar, and that it was less likely than not that the Veteran has a current right knee disability due to or related to an in-service injury, event, or disease, including complaints for knee pain and the incident reported by the Veteran in which he hit his knee on rocks. The medical opinion acknowledged that the Veteran has in-service right knee injury, laceration, and hit his right knee on rocks, and he rejected a link between the Veteran’s current right knee symptoms and in-service injury based on his review of the relevant medical records to include the Veteran’s service separation examination and subsequent re-enlistment examination. The competent, credible evidence of record shows that the Veteran did not have right knee disability in service or that he had arthritis within one year after separation from a period of active service. Although there is competent, credible evidence that the Veteran sustained an in-service injury to the right knee, laceration, it shows that the injury resolved prior to service separation, based on normal clinical evaluation of the lower extremities on service separation examination in June 1973, re-enlistment examination in November 1973, and service separation examination in October 1974. The first abnormal pathology of the right knee is decades after his active military service, and no medical professional has linked any right knee disability to in-service injury or disease. The Veteran is competent to report injury, symptoms, and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, neither the Veteran nor his representative is competent to attribute his right knee pain symptoms shown decades after the service separation to in-service injury or disease as they lack the requisite medical expertise and training to formulate a medical opinion as to the etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, to the extent that Veteran suggests has had chronic right knee problems since his in-service injury, the Board finds this is not credible given (1) the STR showing that the Veteran fell on a rock while playing football, not from being thrown into a rock during a typhoon; (2) normal clinical evaluation of the lower extremities on service separation examination in June 1973, re-enlistment examination in November 1973, and service separation examination in October 1974 coupled with his November 1973 medical history wherein he denied knee and joint problems and his October 1974 self-report on service separation that “to the best of my knowledge I am in the best of health;” (3) the decades intervening his active service and the first documented right knee complaints; and (4) the incongruent history reported by the Veteran. It is noted that, although for VA compensation purposes he has reported onset of right knee pain symptoms since his 1972 injury, he reported during post service treatment for knee symptoms decades later, in July 2005, that his right knee problems likely resulted from his many years of work in construction. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the STRs as evidence contradictory to a veteran’s assertions if the STRs appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred.). The Board assigns greater probative value to the STRs, discussed above, along with decades intervening service discharge and the first documented complaints or abnormal findings for the right knee. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The December 2019 VA medical opinion, indicating that the Veteran does not have a right knee disorder linked to his right knee injury in service, is probative as it was based on in-person examination of the Veteran, medical history provided by the Veteran, and review of the relevant medical records. The Veteran has neither identified nor provided a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. The competent, credible evidence of record reflects no chronic right knee disability during either period of the Veteran’s active service and shows a healed laceration without sequelae; it shows no diagnosis for arthritis within one year after a period of active service; and it shows that he does not have right knee condition etiologically related to his in-service right knee injury. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a low back disability. The Veteran contends that he fell off the back of a truck changing a tire injuring his back, that his symptoms started after the incident in service, and that they are more severe now. See Hearing Transcript (June 2019). He stated that he has had ongoing symptoms of low back pain since service. Id. The question for the Board is whether it is as likely as not that the Veteran had a chronic low back disability that began during active service; arthritis manifested to a compensable degree within one year of service separation; or his low back disability is otherwise etiologically related to an in-service injury or disease. The Board concludes that, while the Veteran has a current low back disability, the preponderance of the evidence is against finding that the Veteran has a chronic low back disability that began in service; that arthritis manifested to a compensable degree within the applicable presumptive period; or that his back disability is otherwise related to an in-service injury or disease. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. STRs for the first period of service reflect complaints of recurring back pain in November 1972 and December 1972. In February 1973, the Veteran reported exacerbation of chronic back pain for several months. In March 1973, the Veteran reported back pain for six months. The examination at that time was unremarkable, and the examiner indicated that the Veteran was malingering. There was no evidence of back disease, and the Veteran was instructed to return to duty. An April 1973 lumbar x-ray showed normal findings. A June 1973 service separation examination and November 1973 re-enlistment examination reflect normal clinical evaluation of the spine and, on November1973 re-enlistment examination, that the Veteran denied a history of recurrent back pain. An August 1974 STR reflects, by history, a back injury in 1972 and that his back began to hurt four days earlier. He was assessed with strain. His October 1974 service separation examination reflects normal clinical evaluation of the spine and that “to the best of my knowledge I am in best of health.” On the medical history part of the examination, the Veteran denied a history of recurrent back pain. Post-service, in July 1996, Georgia Department of Corrections Intake Physical examination showed normal spine. In December 1997, the Veteran reported back pain present for four days and denied recent or old trauma. A June 2003 VA treatment note reflects complaints of back pain and, by history, initial injury to back in 1971 when he fell against a truck after an explosion. It was noted that he was a construction worker for many years. A June 2007 lumbar x-ray showed minimal spondylotic changes but no significant evidence of disc degeneration. In June 2013, mild degenerative changes in lower back were noted. A December 2019 VA examination reflects a diagnosis of degenerative arthritis of the spine. Based on review of medical history, relevant medical records, and current examination findings, the examiner concluded that it was less likely than not that this Veteran’s current low back pain was caused by or related to an in-service injury, event, or disease, including complaints for back pain and the incident reported by the Veteran in which he fell off the back of a truck. The examiner explained that, although the Veteran had complaints of low back pain between 1972 to 1973, diagnosed as strain/muscle spasm, his x-rays were normal during active service and his symptoms had resolved by the time he was discharged from the service. He further explained that there were no low back complaints for many years after service and noted that treating medical provider had indicated his back symptoms may be caused by an altered gait due to his prior history of hip replacement. The Veteran is competent to report injury, symptoms, and treatment. Layno, supra. However, neither the Veteran nor his representative is competent to attribute low back disability shown decades after the service separation to in-service injury or disease. This is because they lack the requisite medical expertise and training to formulate a medical opinion as the etiology. This is a complex medical determination beyond the ken laypersons as it requires a knowledge of the spine and its disease processes. See Jandreau, supra. Further, to the extent that the Veteran suggests ongoing low back symptoms or disability since service, the Board finds that this is not credible in view of his denial of a history of back symptoms and normal clinical evaluation on service examinations at service separations and reenlistment, and the many decades intervening service and the first documented low back complaints. Also, the Veteran’s history has been incongruent with the record—in this regard, he reported that he injured his low back when the “tire rim came off and the tire blew up and it threw me up and I landed on the blade of the gun” when he was in Okinawa—however, his STRs show that an explosion of the tire rim occurred in July 1972 when he was in San Francisco. Therefore, the lay evidence has little probative value. See Buczynski, Kahana, both supra. The Board assigns greater probative value to the STRs, discussed above, along with the more than two decades intervening service discharge and the first documented complaints or abnormal findings for the low back. See Curry, Buchanan, Maxson, all supra. The December 2019 VA medical opinion is also probative as it was prepared by a skilled, neutral medical professional after examining the Veteran and reviewing the relevant medical records. To the extent that he misdated the first documented post-service back complaint, the Board finds that this does not undermine the essential thrust of his medical opinion which was that there was an extensive period of time intervening service and his first documented post service back complaints. As such, the Board believes remand for correction of the date would serve no useful purpose since both dates reflect an extensive period of time between discharge from active service and documented complaints in the medical record as to the low back. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107 (b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. P. 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.