Citation Nr: 21000156 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-63 932 DATE: January 4, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. Cervical spine disability did not manifest in service, was not caused by service, and did not manifest within one year of discharge from service. 2. A left knee disability did not manifest during active service or within one year of separation and was not caused by any aspect of service. A left knee disability is not otherwise attributable to service. 3. A right knee disability did not manifest during active service or within one year of separation and was not caused by any aspect of service. A right knee disability is not otherwise attributable to service. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by service, nor can be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the United States Army from January 1984 to June 1984, and on active duty from October 1990 to April 1991, to include service in Southwest Asia, and with additional service in the Army Reserve until retirement in 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded these issues to the RO for additional development. Additional Army Reserve service personnel records were received in August 2019 and new VA examinations were obtained in September 2019. Therefore, there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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. The availability of presumptive service connection for a disability does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence Service personnel records show that the Veteran served as a material control and accounting specialist. He was deployed to Southwest Asia from December 1990 to April 1991. The Veteran's STRs do not document relevant treatment, complaints, symptoms, or diagnoses related to neck bilateral knee disabilities. In a July 1988 report of medical history examination, the clinical evaluation was normal including the upper extremities; however, the spine or other musculoskeletal was abnormal. The examiner noted thoracic lordoscoliosis, and there was no mention of a cervical spine injury. Furthermore, the Veteran reported that he was in good health, denied having cramps in his legs; having tricked or locked knee; a head injury or recurrent back pain. See STR-Medical, p.95. In an April 1991 report of medical history demobilization examination, the clinical evaluation was normal. The Veteran stated that he was in good health, on no medication and had no health problems while in-service. He reported low back pain but he also denied ever having a head injury; cramps in his legs or tricked or locked knee, and arthritis, rheumatism, or bursitis. See April 2005 STR-Medical, p.87. In a July 1994 report of medical examination, the clinical evaluation revealed normal upper extremities but abnormal spine, musculoskeletal. The Veteran reported recurrent ack pain but stated that he was in good health, and on no medication. He also denied ever having a head injury; cramps in his legs or tricked or locked knee, and arthritis, rheumatism, or bursitis. However, the Veteran stated he had at the time or in the past had recurrent back pain. See April 2005 STR-Medical, p.44; 63. In a February 2004 report of medical examination for retention in the Army Reserves, the clinical evaluation revealed the upper and lower extremities as well as the spine, other musculoskeletal were normal. In a concurrent medical history questionnaire, the Veteran denied any arthritis, recurrent back pain, swollen or painful joints, knee trouble, or bone, joint or other deformity. The examiner noted that the Veteran had no systemic illness and that the examination was unremarkable. See April 2005 STR-Medical, p.32. A March 2005 limitation of physical activity report (profile) noted only low back pain. The Veteran underwent a VA spinal examination in May 2005. The Veteran reported low back pain since his deployment to Southwest Asia in the 1990s. He did not report a traumatic injury but believed that the pain was caused by riding in trucks and lifting equipment. He made no mention of cervical or knee symptoms. A cervical spine examination was normal. In a January 2015 VA treatment note, a clinician noted paravertebral muscle spasm; degenerative changes at the lower cervical level and mild flattening of C5 and C6 vertebral bodies. See December 2018 Medical Treatment Record-Government Facility, p.19. In April 2016, the Veteran was afforded a knee and lower leg VA examination. The examiner reviewed the claims file; and conducted an evaluation. The examiner noted that the Veteran had a current diagnosis of bilateral knee joint osteoarthritis; diagnosed in 2015. The Veteran did not use an assistive device, and the condition did not impact his ability to perform occupational tasks. The examiner found that the bilateral osteoarthritis of the knees was less likely than not incurred in or caused by the claimed in-service injury, event or illness. However, the examiner’s rationale was not thorough. The examiner merely stated the condition was not related to service because there were no medical records indicating a diagnosis or treatment for any knee condition. In October 2016, a private opinion was submitted dated in September 2016. The private physician stated that the Veteran presented with a neck and high back pain with stiffness, numbness, tingling, sensorial loss, cramps and weakness of the cervical spine muscles radiating to his shoulders, arms, elbows and wrists. However, there were no clinical examination observations nor did the physician indicate that he provided any on-going care. The physician indicated that the Veteran was unable to lift heavy weights or perform duties. The examiner concluded the Veteran’s conditions were more probable than not secondary to his military service performance. However, the examiner did not provide a rationale as to why the Veteran’s conditions were related to service. See October 2016 Medical Treatment Record-Non-Government Facility. In a statement submitted in August 2017, the Veteran indicated that while in-service when loading equipment into a van, he slipped and fell between the legs of a 20-ton loading crane, hitting his lower back with the crane leg. However, the statement did not mention the Veteran injuring his cervical spine (neck) or knees. See September 2018 Translation Related, p.6. In August 2018, the Veteran had a cervical fusion surgery. The Veteran’s diagnosis when admitted was cervical stenosis and the principal diagnosis was anterior cervical fusion. The physician noted that at discharge the Veteran’s condition was good. See December 2018 Medical Treatment Record-Government Facility, p.10. In September 2019, the Veteran was afforded another knee and lower leg conditions VA examination. The examiner reviewed the claims file; considered the subjective accounts and conducted an evaluation. The examiner noted that the Veteran had a diagnosis of bilateral knee joint osteoarthritis. The Veteran reported he had the knee condition since 1992. The Veteran endorsed that the right knee was worse than the left and that localized pain, limitation caused the right knee to give out. The Veteran described selling of the knees and denied having knee surgery. The Veteran further noted medial swelling of the right knee due to prolonged walking. The examiner found that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that the Veteran’s August 2017 statement indicating that he fell from a crane, during active military service, was silent for a direct injury to the knees and there was no statement regarding followup treatment. In addition, the examiner stated that the private physician in September 2016 who indicated that the Veteran had bilateral knee degenerative joint disease/ osteoarthritis opinion lacked clinical and objective evidence and a physical examination to support his assessment. And the information did not indicate that the Veteran’s condition dated back to active military service. The examiner also noted that the Veteran’s STR’s were silent for an event, injury, treatment or diagnosis regarding the bilateral knee. The examiner stated the condition dated back to 2015, which was many years after service (24 years after service) and followed its natural progression. The same day, the Veteran was afforded another cervical spine conditions VA examination. The examiner reviewed the claims file; considered the subjective accounts and conducted an evaluation. The examiner noted a diagnosis of cervical degenerative disc disease status post cervical arthrodesis and left cervical radiculopathy. The Veteran indicated that his neck pain began about one year after returning from deployment in Saudi Arabia. The Veteran stated while he was deployed, he got into a motor vehicle accident while driving a van to make a delivery. The Veteran said that the trip was 10 hours total and he fell asleep after driving 4 hours. The Veteran noted that no incident report was filed; because there was no damage to the vehicle or him and his passenger. The Veteran endorsed that a year after the accident he was putting a hood over his head and noticed sudden pain and cracking in his neck. He stated that he had neck pain ever since. The Veteran indicated that he had no other motor vehicle accidents before or after the incident in Saudi Arabia or any other injury to his neck. The examiner noted that the impact of the Veteran’s condition was that he had a limited range of motion, he experienced pain when trying to look upward or rotate his head and he was limited in lifting, pushing, pulling or carrying objects over 10 or more pounds. And doing activities that required rapid neck movement. The examiner found that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale given the Veteran denied any head or neck traumas during his deployment. In terms of his fall in-service the Veteran stated that he hit his lower back with a crane leg. In addition, the examiner noted that the Veteran’s medical records did not show neck complaints until December 2014 (which is about 23 years after service). Following an examination and review of the claims file, the examiner concluded that the Veteran's neck disability was less likely than not related to his service. The examiner explained that there was no evidence of a neck condition in or after service until December 2014 (about 23 years following discharge). Cervical Spine (Neck) The Board has considered the Veteran's contentions that his neck disability is entitled to service connection. In a statement mentioned above, the Veteran indicated that his cervical spine condition was caused by a crane leg hitting his low back, while in-service. The Board places low weight on the Veteran’s report of a neck injury because it is inconsistent with multiple subsequent physical examinations in which the Veteran denied any chronic symptoms or reported any injury when he had the opportunity to do so. He was found fully ready for service for 15 years after the Southwest Asia deployment. However, the Veteran does not mention a cervical spine/ neck injury in his statement; and there is no mention of the crane accident in the Veteran’s STR’s or service personnel records. The Board acknowledges the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. The STRs are silent for any injuries or onset of symptoms associated with the cervical spine, and the Veteran’s April 1991 examination and February 2004 reserves examination revealed normal upper extremities and spine, other musculoskeletal. In this case, however, the Veteran is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion linking his current neck disability to service and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and more credible than the lay opinions of record. Even if the undocumented truck accident in Southwest Asia occurred, the evidence does not support the Veteran sustaining a traumatic neck injury because he failed to report the injury or any chronic symptoms on many subsequent physical examinations. The Board places greatest weight on the service record examinations and on the VA examination in September 2019 which are consistent and fail to demonstrate an onset or cause of the cervical spine disability in service. The Board places less weight on the September 2016 private physician’s opinion as it appears it was offered by a consultant with no assessment of the multiple service physical examinations and was based primarily on the Veteran’s contentions. In addition, the Board concludes that, while the Veteran has cervical degenerative disc disease which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The cervical spine condition was not "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. At demobilization on the report of medical examination in April 1991 clinical examination of the spine and musculoskeletal system was normal. Service records do not support an onset of the Veteran's neck degenerative changes during active service. Based on the probative evidence of record the Board finds that the Veteran's cervical spine condition did not manifest within the one-year period after active duty and service connection is not warranted on a presumptive basis. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. The competent and credible evidence of record does not demonstrate that the Veteran's neck disability arose in service, within one year of service, or is otherwise caused by service or a service-connected disability. As there are no competent nexus opinion underlying the claim, service connection for a neck disability is not warranted. Left and Right Knee The Veteran contends that service connection is warranted for a left knee disability and a right knee disability. The question for the Board is whether the Veterans left, and right knee disabilities began during service or is at least as likely as not related to an in-service injury ot disease. The Board concludes that the Veteran does have a left and a right knee disability but that there is insufficient competent and probative evidence that the disabilities were caused by injury or disease in service. 38 U.S.C. §§ 1110, 1131, 5107(b). The Veteran's reports regarding his current symptoms and ongoing manifestations of intermittent pain and swelling which he is competent to report. However, the Board finds the weight of competent and credible evidence is against the Veteran's claim for service connection for a right and left knee disability. While the Veteran believes his symptoms of intermittent pain and swelling are a consequence of degenerative disease indicative of a right and left knee disability and related to an in-service injury, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing a right wrist disability and linking his current symptoms to an in-service injury and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the medical evidence is more probative and more credible than the lay opinions of record. The September 2019 VA examination indicated that the Veteran had a current diagnosis of bilateral osteoarthritis, diagnosed in 2015. The examiner found that the Veteran’s bilateral knee disability was less likely than not related to service; because the Veteran’s STR’s were silent for a complaint, treatment or diagnosis of the knees; and the claimed in-service crane accident failed to mention an injury to the Veteran’s knees. As noted above, the Board places less weight on the opinion of the September 2016 consulting physician’s report as it does not address the service physical examinations, is conclusory, and appears based substantially on the Veteran’s reporting which is not consistent with the service records. As such, the Board finds that service connection for a right and left knee disability is not warranted. Since the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 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); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.