Citation Nr: 20044529 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 15-17 948 DATE: July 2, 2020 ORDER Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran’s left leg disability did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The Veteran’s low back disability did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left leg disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1964 to March 1967. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in July 2018, the Board remanded the issues on appeal for further evidentiary development. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a left leg disability is denied. After a review of the record, the Board finds that the Veteran does not meet the criteria for service connection as the preponderance of the evidence supports a finding that no left leg related in-service event, injury, or disease occurred. At the outset, the Board notes that the Veteran has a current diagnosis of left knee arthritis and left knee pain. See May 2013 CAPRI records. As such, the first element of service connection is met. Concerning the second element of service connection (in-service incurrence or aggravation of a disease or injury), the Board finds that the Veteran has no left leg related in-service event, injury or disease. A review of the service treatment records shows that there were no complaints of a left leg injury or disease in the March 1964 enlistment examination and January 1967 separation examination. See March 2008 STR – Medical. Similarly, there are no reports of knee pain on his January 1967 separation report of medical history. However, in March 2008, the Veteran stated that during basic training on a night fire exercise, he slipped and hit his left knee on the ground. The Veteran reported that when he sought treatment for his strep throat, the medic examined the Veteran’s left knee and informed him that it was a bruised knee. The Veteran claims that he has sharp pain on the exact same spot that he injured his knee. See March 2008 VA 21-4138 Statement in Support of Claim. The Board finds the Veteran’s statement not persuasive as the post-service treatment records show that from 1994 to 2001 the Veteran did not complain of any left leg pain or abnormalities. See March 1998 Medical Treatment Record – Non-Government Facility and April 1999 Medical Treatment Record – Non-Government Facility. The Veteran sought treatment for various ailments and at no time did the Veteran complain of a left leg related pain. The Board finds it logical that if the Veteran had complaints of left knee pain, he would have reported such as he did for other ailments over the years. Moreover, as reflected above, there are no in-service complaints of left knee pain during service, to include on his separation report of medical history. The Board concludes that contemporaneous records have more probative value than later reported events as the service treatment records were created at the time of the alleged injury. As such, the Board finds the Veteran’s statement that he has had left knee and/or leg pain since service not credible. Accordingly, the second element of service connection has not been met. Importantly, during the August 2019 VA examination, the Veteran reported that 10 years earlier, he attempted to lift a heavy safe that weighed over 110 pounds, which caused him to have back and left knee pain. He reported to the VA examiner that since then, he has had chronic left knee pain. Thus, based on his own assertion, the Veteran did not begin to experience chronic left knee pain until a post-service injury decades after his service separation. The Veteran was afforded a VA examination in August 2019 with an addendum opinion in October 2019. In the August 2019 examination, the examiner diagnosed the Veteran with left knee joint osteoarthritis. As the examiner did not render an opinion as to the etiology of the Veteran’s left knee disability, in October 2019 the same examiner opined that the Veteran’s condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness as the service records showed no symptoms or complaints of a left knee condition. Moreover, the January 1967 separation examination does not reflect any complaints of knee pain. The Board finds that the October 2019 VA examiner’s opinion is probative because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the records show that from 1994 to 2001 the Veteran was noted to have no left leg pain. Accordingly, the Board finds that the VA examiner’s opinion is competent and persuasive and assigns it high probative value. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s left leg disability manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). Based on the records, the Veteran’s left knee disability manifested in 2011, more than 40 years after service. See May 2013 CAPRI. Prior to this 2011 finding, there is no evidence of a left leg disability within the first post-service year. As such, service connection for a left leg disability based on the presumption in favor of chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. In sum, the criteria for service connection for a left leg disability have not been met. The evidence does not show that a left leg- related event, injury, or disease occurred in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. 2. Entitlement to service connection for low back disability is denied. At the outset, the Board notes that the Veteran has a current diagnosis of severe central stenosis at the L4-5 with neurogenic claudication and degenerative joint disease of the lumbar spine. See August 2019 C&P Exam. As such, the first element of service connection is met. Concerning the second element of service connection, a review of the service treatment records shows that the Veteran had normal spine with no complaints of recurrent back pain or arthritis in the March 1964 enlistment examination and January 1967 separation examination. The Board finds that the Veteran did not have a low back related injury or incident in service as even the Veteran stated that his low back disability manifested as a result of his left leg disability and not due to service. As the Veteran did not allege any specific low back related in-service incurrence or aggravation of a disease or injury and the records do not indicate any low back-related complaint, treatment, or diagnosis until 2011, more than 40 years after service, the Board finds that the second element of service connection has not been met and as such the claim is denied. Regarding service connection on a secondary basis, the Veteran claimed that his low back disability manifested due to his non-service-connected left leg disability. As the Veteran’s claim for entitlement to service connection for a left leg disability is denied, the Board finds that the Veteran cannot avail himself under the theory of service connection on a secondary basis. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s low back disability manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). Based on the records, from 1994 to 2001 the Veteran did not complain of any back pain or abnormalities. See March 1998 Medical Treatment Record – Non-Government Facility and April 1999 Medical Treatment Record – Non-Government Facility. In fact, during the August 2019 VA examination, the Veteran reported that he had back symptoms for the last 10 years after attempting to lift a heavy safe that weighed over 110 pounds. As there is no evidence of manifestation within the first post-service year, service connection for a low back disability based on the presumption of a chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. (Continued on the next page)   In sum, the criteria for service connection for a low back disability have not been met. The evidence does not show, and the Veteran does not allege, that a low back- related event, injury, or disease occurred in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.