Citation Nr: 20043544 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-40 461 DATE: June 29, 2020 ORDER Service connection for a lumbar spine disability is denied. Service connection for a right knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a lumbar spine disability that was incurred in service or is attributable to a disease or injury in service. 2. The preponderance of the evidence is against finding that the Veteran has a right knee disability that was incurred in service or is attributable to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to October 1971. These matters were last before the Board in November 2018, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Upon the issuance of a September 2019 supplemental statement of the case, the case was returned to the Board for its adjudication. Service Connection 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that he developed back pain in service that was a manifestation of a lumbar spine disability the symptoms of which have continued ever since his discharge from service. In the alternative, he contends that he developed a lumbar spine disability after his discharge from service and that the condition is attributable to his service. 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. While the Veteran has a current diagnosis of a lumbar spine disability, the preponderance of the evidence weighs against finding that the condition is related to an in-service injury, event, or disease. A review of service treatment¬ records reflects that the Veteran sought treatment for back pain in April 1970 after he reported an injury when he was bending over. After an evaluation the impression was a muscle strain. There are no subsequent service records which reflect specified treatment for low back symptomatology. No abnormalities related to the spine were noted on the Veteran’s October 1971 discharge examination, and no history of back pain was reported by the Veteran on the corresponding October 1971 Report of Medical History. The Veteran was first afforded a VA examination to evaluate the nature and etiology of his lumbar spine disability in May 2014, during which he reported that he had been experiencing low back pain since he began boot camp over 45 years prior. He also detailed that he had been undergoing treatment for his low back pain intermittently as early as 1972, when he received an injection to relieve his back pain. After an in-person evaluation and a review of the claim file, the examiner endorsed a diagnosis of multilevel degenerative changes of the lumbar spine. The examiner then opined that it was less likely than not that the lumbar spine disability was attributable to service, and noted that the Veteran did not have any documented treatment for chronic low back symptomatology in service; rather, the isolated instance of such treatment appeared to resolve without further symptoms. The examiner also referred to medical literature in support of the finding that the Veteran’s long history of employment as a truck driver likely contributed to his development of his lumbar spine disability. In an October 2014 statement, the Veteran’s sister detailed that she took the Veteran for treatments for his back pain with a Dr. C.K. for some 25 or 30 years, with subsequent treatment with a Dr. N.F. thereafter when Dr. C.K. passed away. She also related that the Veteran had to be transported home in a stretcher on one occasion when he was on leave from service. In addition, she stated that the Veteran told her that his drill instructor kicked him in the back. According to her, the Veteran has experienced severe back pain ever since leaving service. Pursuant to the Board’s remand instructions, the claims file was returned to the May 2014 examiner in August 2019, whereupon she issued an addendum opinion confirming her determination that it was less likely than not that the lumbar spine disability was incurred in or otherwise attributable to service. After acknowledging the lay evidence recently added to the file in which the Veteran and his sister attested to his having experienced several back injuries in service, the examiner discounted the probative value of that lay testimony on the grounds that it was not supported by the objective medical evidence of record. Again, the examiner highlighted the lack of continued treatment for low back symptomatology following the isolated instance of in-service treatment. The examiner also reiterated that the Veteran’s long history of truck driving likely contributed to his development of a lumbar spine disability, and again referred to medical literature to support this conclusion. A review of VA medical records shows that the Veteran reported a history of experiencing chronic low back pain during an initial consultation in March 2014 when he began receiving care through the VA system. Subsequent VA medical records show continued treatment for low back symptomatology, with an August 2017 radiological examination revealing moderate degenerative changes throughout the lumbar spine. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a lumbar spine disability. Although the Board acknowledges that the Veteran did receive some treatment for low back pain in service, both his separation examination and report of medical history suggest that any such symptoms had resolved by the time of his discharge and were not chronic in nature. In further support, the Board relies on the determination of the May 2014 VA examiner, who concluded that the isolated instance of treatment for back pain in service was not a manifestation of a chronic back condition but rather an acute injury that resolved without residual symptomatology. She reiterated this determination once again in the August 2019 addendum opinion, and again noted the lack of consistent treatment for low back symptomatology and the absence of any recorded low back condition on the discharge documents. These opinions, based as they are on a thorough review of the claims file and an in-person evaluation of the Veteran himself, are highly probative. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board acknowledges that the Veteran and his sister are competent to report that he experienced symptoms of low back pain ever since service; however, neither individual is competent to provide a diagnosis in this case or to determine that these symptoms are attributable to his experiences in service. The determination of whether lay-observable symptoms constitute a diagnosis, or the date of the onset of that diagnosis, is a complex medical question that is the province of trained and credentialed medical providers. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). In summation, the conclusion of the May 2014 VA examiner is the most probative medical evidence of record. Ultimately, the Veteran has submitted no objective medical evidence or other competent evidence in support of his contention that his diagnosed lumbar spine disability is related to service. Therefore, in light of the probative VA examiner opinion, the preponderance of the evidence is against the claim of service connection on a direct basis under 38 C.F.R. § 3.303(a). The Veteran may still be entitled to service connection for a lumbar spine disability if the evidence establishes that the condition is otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). As stated, however, the Veteran has presented no competent evidence to support his general contention that his post-service diagnosis of a lumbar spine disability is attributable to service, to include the treatment he underwent in service for low back pain. Accordingly, the Board also finds that the preponderance of the evidence is against the Veteran’s claim as attributable to an in-service occurrence pursuant to 38 C.F.R. § 3.303(d). The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a right knee disability The Veteran contends that he developed right knee pain in service that was a manifestation of a right knee disability, the symptoms of which have continued ever since his discharge from service. In the alternative, he contends that he developed a right knee disability after his discharge from service and that the condition is attributable to his service. 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. While the Veteran has a current diagnosis of a right knee disability, the preponderance of the evidence weighs against finding that the condition is related to an in-service injury, event, or disease. A review of service treatment records reflects that the Veteran sought treatment for right knee pain and swelling in January 1969 after he reported experiencing blunt trauma to his knee during physical exercise. After an evaluation the impression was a contusion with no apparent residuals. Thereafter, a November 1970 outpatient record showed that the Veteran sought treatment for right knee pain and was noted to have a small abrasion on this right knee. There are no subsequent service records which reflect specified treatment for right knee symptomatology. No abnormalities related to the knees or lower extremities were noted on the Veteran’s October 1971 discharge examination, and no history of right knee pain was reported by the Veteran on the corresponding October 1971 Report of Medical History. The Veteran was first afforded a VA examination to evaluate the nature and etiology of his right knee disability in May 2014, during which he reported that he injured his knee when he fell on the deck of the ship he was serving on and has experienced right knee pain ever since this incident. After an in-person evaluation and a review of the claim file, the examiner endorsed a diagnosis of right knee osteoarthritis. The examiner then opined that it was less likely than not that the right knee disability was attributable to service, and noted that the Veteran did not have any documented treatment for chronic right knee symptomatology in service; rather, the two isolated instances of such treatment appeared to resolve without further symptoms, and there was no documentation of a right knee disability at the time of the Veteran’s discharge. In an October 2014 statement, the Veteran’s sister detailed that she took the Veteran for treatments for his right knee pain with a Dr. C.K. for some 25 or 30 years, with subsequent treatment with a Dr. N.F. thereafter when Dr. C.K. passed away. She also related that the Veteran had to be transported home in a stretcher on one occasion when he was on leave from service. In addition, she stated that the Veteran told her that his drill instructor kicked him in the back. According to her the Veteran has experienced severe bilateral knee pain ever since leaving service. Pursuant to the Board’s remand instructions, the claims file was returned to the May 2014 examiner in August 2019, whereupon she issued an addendum opinion confirming her determination that it was less likely than not that the right knee disability was incurred in or otherwise attributable to service. After acknowledging the lay evidence recently added to the file in which the Veteran and his sister attested to his having experienced right knee injuries in service, the examiner discounted the probative value of that lay testimony on the grounds that it was not supported by the objective medical evidence of record. Again, the examiner highlighted the lack of continued treatment for right knee symptomatology following the two isolated instances of in-service treatment. The examiner also added that the Veteran’s long history of truck driving likely contributed to his development of a right knee disability and referred to medical literature to support this conclusion. A review of VA medical records shows that the Veteran reported a history of experiencing chronic right knee pain during an initial consultation in March 2014 when he began receiving care through the VA system. Subsequent VA medical records show continued treatment for right knee symptomatology, with radiological examinations dated in August 2014 and January 2015 revealing mild degenerative changes through the right knee and osteoarthritic narrowing of the medial joint compartments. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a right knee disability. Although the Board acknowledges that the Veteran did receive some treatment for right knee pain and swelling in service, both his separation examination and report of medical history suggest that any such symptoms had resolved by the time of his discharge and were not chronic in nature. This is further corroborated by the lack of subsequent treatment following the documented treatment reports. In further support, the Board relies on the determination of the May 2014 VA examiner, who concluded that the isolated instances of treatment for right knee symptomatology in service were not a manifestation of a chronic right knee condition but rather acute injuries that resolved without residual symptomatology. She reiterated this determination once again in the August 2019 addendum opinion, and again noted the lack of consistent treatment for right knee symptomatology and the absence of any recorded right knee condition on the discharge documents. These opinions, based as they are on a thorough review of the claims file and an in-person evaluation of the Veteran himself, are highly probative. Sklar, supra. The Board acknowledges that the Veteran and his sister are competent to report that he experienced symptoms of right knee pain ever since service; however, neither individual is competent to provide a diagnosis in this case or to determine that these symptoms are attributable to his experiences in service. The determination of whether lay-observable symptoms constitute a diagnosis, or the date of the onset of that diagnosis, is a complex medical question that is the province of trained and credentialed medical providers. Jandreau, supra. In summation, the conclusion of the May 2014 VA examiner is the most probative medical evidence of record. Ultimately, the Veteran has submitted no objective medical evidence or other competent evidence in support of his contention that his diagnosed right knee disability is related to service. Therefore, in light of the probative VA examiner opinion, the preponderance of the evidence is against the claim of service connection on a direct basis under 38 C.F.R. § 3.303(a). The Veteran may still be entitled to service connection for a right knee disability if the evidence establishes that the condition is otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). As stated, however, the Veteran has presented no competent evidence to support his general contention that his post-service diagnosis of a right knee disability is attributable to service, to include the treatment he underwent in service for right knee symptomatology. Accordingly, the Board also finds that the preponderance of the evidence is against the Veteran’s claim as attributable to an in-service occurrence pursuant to 38 C.F.R. § 3.303(d). The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.