Citation Nr: 21000932 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-58 737 DATE: January 6, 2021 ORDER Service connection for a back disability is denied. REMANDED Entitlement to service connection for left knee, degenerative joint disease (claimed as knee problem) is remanded. FINDING OF FACT The Veteran’s back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to December 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision. In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. In May 2019, the Board remanded these issues as well as others for further development, and the case has been returned for appellate consideration. In a July 2020 rating decision, service connection was granted effective June 11, 2012, for: gastroesophageal reflux disease (GERD), evaluated as 10 percent disabling; left hallux valgus, evaluated as 10 percent disabling; right hallux valgus, evaluated as 10 percent disabling; bilateral pterygium with removal, evaluated as noncompensable; and hemorrhoids, evaluated as noncompensable. As this represents a full grant of the benefits sought, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluations or effective dates assigned. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.52 (formerly 20.302), 20.1103. In a July 2020 supplemental statement of the case, service connection was denied for back problems and left knee degenerative joint disease (claimed as knee problem), so those issues remain on appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For certain enumerated chronic diseases, such as arthritis, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is 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.” 38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Entitlement to service connection for a back disability, to include lumbosacral strain or degenerative arthritis of the spine (claimed as back problems). The Veteran seeks service connection for back problems. During his May 2019 hearing, he contended that his condition was the result of heavy lifting required to load C-130s during service. He stated that picking up heavy things was hard on his back and that he currently wore a brace. The question for the Board, therefore, is whether the Veteran has a current disability that began during service or is at least as likely as not related to service, including as a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has a diagnosis of lumbar strain as well as degenerative arthritis of the spine, the latter of which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology, nor is it directly related to active duty service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In November 2019, the Veteran was afforded a VA examination for back (thoracolumbar spine) conditions, during which diagnoses of lumbosacral strain and degenerative arthritis of the spine were noted. As the Veteran has a current disability, the first Shedden element is met. The Veteran’s service treatment records show that in March 1969 he complained of low back pain and fatigue without dysuria or frequency. It was noted that he had had the same symptoms with a urinary tract infection one year before. As it is established that the Veteran had a back complaint during active duty, the second Shedden element is met. The Veteran’s December 1970 report of medical examination for separation from active duty was silent for any back issues. On his September 1977 report of medical history for entrance into the reserves, he indicated having recurrent back pain. It was not noted on the report of medical examination. The Veteran’s VA medical records show that during his initial evaluation in July 2012 he complained of low back pain of more than one year’s duration. He requested a back brace and was directed to prosthetics. His medical records show that in March 2016 he went in with a consultation for a semi-rigid LSO (lumbosacral orthosis) “due to low back pain,” which was issued. An August 2019 MRI of the lumbar spine revealed mild to moderate degenerative spondylosis in the lumbar spine at L3-4 and L4-5 level. Left paracentral disc protrusion at the L4-5 level caused mass effect upon the descending left L5 nerve root. During the November 2019 VA examination, the Veteran reported that his back problems began during basic training as a result of marching and carrying heavy field packs. He reported that his back pain got worse in Vietnam as a result of lifting bodies and placing them in caskets. He reported that he had back pain at the end of service that was located in the lower back and radiated to the interscapular area and into the anterior left thigh. He reported that the pain now was in the same locations but the level had increased in the last 10 years. It was indicated that he did not use any assistive devices as a normal mode of locomotion. The examiner opined that it was less likely as not that the Veteran’s degenerative lumbar spine disease was incurred in or caused by service. It was explained that there was no contemporaneous evidence from service exit or reserve records that significant back pain existed, there was no documentation of trauma in the service treatment records that would cause the degree of degeneration seen, and there was no real documentation of ongoing back pain. It was noted that the exit medical evaluation was negative for back pain as was the reserve entry examination seven years after discharge from active duty. It was opined that it was greater than 50 percent as likely as not that the Veteran sustained a lumbosacral strain while in service based upon the Veteran’s complaint of back pain during active duty. It was explained, however, that the exit evaluation was negative as was the evaluation in 1977. It was noted that there were no records indicating the presence of back pain from 1970 to 1977, and it was explained that 80 percent of lumbosacral strain is self-limiting. It was opined that it was greater than 50 percent as likely that the Veteran’s current back pain is related to his degenerative joint disease. As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The VA examiner opined that the Veteran had an in-service lumbosacral strain, but his current back pain is not related to the in-service disability. The Veteran has stated that he has had back pain continuously since service, but lumbosacral strain is not on the list of chronic disabilities for which presumptive service connection is available based upon continuity of symptoms of a chronic condition. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). That being the case, the Board focuses its attention on the Veteran’s current diagnosis of degenerative arthritis of the spine. The Board notes that the Veteran, while entirely competent to report his symptoms, is not competent to proffer an opinion as to diagnosis or etiology. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specific medical training and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). The earliest evidence of the Veteran seeking medical treatment for complaint of back pain date from 2012, which is more than 40 years after active duty service. The Veteran does not contend otherwise. As pointed out by the examiner, the Veteran’s report of medical history at separation was silent for any complaint of back pain, and the physical examination was negative for a back problem. The examiner noted that, although the Veteran reported back pain seven years later upon entry into the reserves, the report of medical examination was silent for the presence of any back condition. The Board finds that the preponderance of the evidence is against finding that the Veteran’s current back disability, degenerative arthritis of the spine, was directly caused by an in-service event, injury, or disease. The Board particularly notes that the examiner’s statement that there was no evidence, lay or medical, of a trauma in service sufficient to cause the degree of degeneration currently seen. In considering whether presumptive service connection is warranted due to the Veteran’s diagnosis of arthritis, the preponderance of the medical evidence is against finding that the Veteran’s degenerative arthritis manifested during service or within the one-year presumptive period after separation from service. The presence of arthritis must be established by imaging. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. This imaging was obtained only in August 2019. As for continuity of symptoms of a chronic condition, the Veteran is not competent to diagnose his ongoing back pain prior to 2012 as having been due to arthritis versus another cause. Accordingly, the third Shedden element, causal relationship, is not met on either direct or presumptive bases, and the claim fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND Entitlement to service connection for left knee, degenerative joint disease (claimed as knee problem) is remanded. The Veteran seeks service connection for a left knee disability. VA medical records show that in September 2013 he requested a left knee brace, and left knee degenerative joint disease was noted. A diagnosis of osteoarthritis of knee has been noted thereafter. In July 2017, he reported left knee pain of one month’s duration. In November 2019, he reported left knee, neck, and back pain and requested renewal of a Flexeril prescription. The Veteran’s service treatment records are silent for any complaints, symptoms, diagnoses, or treatment of a left knee condition. During his May 2019 hearing, however, the Veteran contended that his current left knee condition was the result of bending during service while loading C-130s and chocking the wheels of aircraft. In November 2019, the Veteran was afforded a VA examination for knee and lower leg conditions, during which no medical diagnosis was identified. The Veteran reported that his knee hurt as a result of bending and stooping in Vietnam doing the work of a graves registrar. The examiner opined that it was less likely than not that the Veteran had a diagnosis of “knee injury incurred in or caused by service.” It was stated that there was “no record that I can find of knee injury in the STRs and no documentation indicating knee injury in the 1970” exit examination or 1977 entrance examination for reserves. Once VA provides an examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination is inadequate if the examiner does not consider the lay evidence. Miller v. Wilkie, 32 Vet. App. 249 (2020). Here, the examiner did not address the Veteran’s contention, as stated during his hearing as well as was recorded during the examination, that his current knee disability was the result of ongoing activities during service, not a specific event or injury. Rather, the examiner based the negative nexus opinion solely upon the lack of evidence of an in-service injury. The lack of contemporaneous service treatment records documenting a diagnosis or complaints during active service, alone, is an insufficient rationale for a negative opinion. See e.g., Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (addressing service connection for hearing loss). Additionally, when declining to make a diagnosis, the examiner failed to address the diagnosis of osteoarthritis of the knee that appears in the Veteran’s VA medical records. Nevertheless, when pain without a diagnosed underlying condition amounts to a functional impairment of earning capacity, pain alone can be a current disability. Saunders v. Wilkie, 886 F.3d 1356, 1364, 1367–68 (2018). This theory as to a disability has not been addressed. Consequently, on remand, a new VA examination is required to determine the nature and etiology of the Veteran’s left knee disability, taking into account the record evidence and accepted medical principles. 38 C.F.R. § 3.159(c)(4). This matter is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran’s left knee disability, to include pain as a disability. The electronic claims folder and a copy of this Remand in its entirety must be provided to the examiner in conjunction with the examination, and the examiner is asked to review the claims file as well as indicate on the report that such review was performed. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must obtain a full history from the Veteran, which should be recorded in the examination report. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology and the circumstances surrounding the onset and exacerbation of symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is advised that the Veteran’s contention is that his current left knee disability is the result of repetitive bending doing such activities as loading aircraft and chocking aircraft wheels, rather than from a particular injury. The examiner is reminded that lack of contemporaneous service treatment records documenting complaints related to knee problems during active service, alone, is an insufficient rationale for a negative opinion. If the examiner finds that a diagnosis of arthritis is not warranted, then the examiner must explain this in the context of the diagnosis recorded in the Veteran’s VA medical records. The examiner is further advised that when there is pain without a diagnosed underlying condition that amounts to a functional impairment of earning capacity, pain alone can be a current disability. Saunders v. Wilkie, 886 F.3d 1356, 1364, 1367–68 (2018). The examiner must address the following as to the Veteran’s left knee: (a) At any time during the pendency of this appeal, has the Veteran had pain of the knee without a diagnosed underlying condition that amounted to a functional impairment of earning capacity? (b) For any identified knee condition, including degenerative arthritis or pain as a disability, is it at least as likely as not (50 percent or greater probability) due to or aggravated by an in-service injury, event, or disease, to include the repetitive bending as the Veteran contends? The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.