Citation Nr: 21001014 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-08 790 DATE: January 6, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not support that the Veteran’s degenerative arthritis of the lumbar spine is etiologically linked to his active duty service. 2. The preponderance of the evidence does not support that the Veteran’s left knee osteoarthritis is etiologically linked to his active duty 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. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1978 to July 1978 and from July 1979 to September 1980. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a March 2018 videoconference hearing. A copy of the transcript is of record. The appeal was remanded in June 2019 to obtain outstanding VA treatment records, missing service treatment records and medical opinions as to the nature and etiology of the Veteran’s lumbar spine and left knee disabilities. The Veteran was afforded VA examinations for his knee and back, and medical opinions were associated with the file in September 2019. The Board finds that the September 2019 medical opinions are supported by sufficient rationale and are adequate. In December 2019, the AOJ requested medical records from Fort Riley Military Hospital for the Veteran’s periods of service. In January 2020, the hospital returned a no records response. Finally, in February 2020, outstanding VA treatment records were associated with the file in response to a request for all outstanding VA treatment records. The Board acknowledges the Veteran’s February 2020 statement claiming 2015 VAMC records from Dr. C.B. were relevant to his claim. The Board notes there are no such records currently associated with the file. However, the RO requested all outstanding VA treatment records and received those. Further, the record does contain 2016 VAMC records from a doctor with the same first name and 2017 records from a doctor with the same last name. Therefore, the Board finds that VA obtained all identified medical records according to the Board’s remand orders and, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141 146 47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, the Board is then responsible for determining 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar spine and left knee The Veteran contends that his degenerative arthritis of the spine was incurred in service due to a motor vehicle accident. Additionally, the Veteran contends that his left knee osteoarthritis was incurred during basic training. There is no dispute that the Veteran is diagnosed with degenerative arthritis of the spine and left knee osteoarthritis. At his March 2018 hearing, the Veteran competently and credibly testified that he injured his back in a motor vehicle accident during service. Further, the Veteran testified that he injured slipped and fell during basic training and injured his knee. Therefore, the first element and second elements of service connection, a current diagnosis and an in service incurrence of an event, injury or disease, are established. Nevertheless, the claims must fail for lack of a nexus. Arthritis is included among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran’s arthritis of the lumbar spine and knee were not diagnosed in service or within one year from separation from service. The record adequately reflects that the Veteran was diagnosed with degenerative arthritis of the lumber spine and osteoarthritis of the left knee in 2015, nearly 35 years after the Veteran’s separation from active duty. Further, the only evidence indicative of continuity of symptomatology for either disability since service is the Veteran’s lay complaints of pain. Although the Board finds the Veteran competent to make these credible complaints, there remains no probative evidence as to the etiology of the symptoms or a link between those symptoms and his subsequent 2015 diagnosis of arthritis. Indeed, the record reveals the Veteran was treated for multiple back and knee injuries between service and his 2015 diagnoses. Although the Veteran is competent to identify observable symptoms such as pain and their onset, he is not competent to determine the etiology of his back and knee arthritis, and it’s potential relationship to these symptoms. These questions are complicated and require greater knowledge of medicine and science than a lay person such as the Veteran possesses. Consequently, the Veteran is ineligible for presumptive service connection under 38 C.F.R. §§ 3.303 (b) or 3.309(a). Having established that the Veteran is ineligible for presumptive service connection under the relevant regulatory provisions, the Board considered direct service connection eligibility. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As noted, the first and second elements of service connection have been established. In June 2018, the Veteran’s primary care physician opined that it was impossible to say the Veteran’s current arthritis came from the in-service back strain diagnosed after his motor vehicle accident because he was only treated once. She noted that arthritis is a common condition which runs in families and is part of the aging process. However, because the opinion is based primarily on the lack of treatment since the injury, and is speculative, the Board finds it is of limited probative value. The Veteran was afforded VA examinations for back and knee conditions in September 2019. The examiner opined that the Veteran’s current lumbar spine and left knee disabilities were less likely than not caused by or incurred in military service. As to the lumbar spine, the examiner acknowledged the Veteran’s report of ongoing pain since the motor vehicle accident in service. However, the examiner drew attention to the Veteran’s 1980 separation examination which did not mention recurrent back pain. The examiner also noted the Veteran previously reported a fall in the military initiated his ongoing back pain. The examiner found the Veteran was involved in motor vehicle accidents in 1992 and 2016 which resulted in injuries to his back. Finally, the examiner reasoned that it was unlikely that the muscle strain diagnosed after the motor vehicle accident was related to the current arthritis. Turning to the left knee, the examiner acknowledged the Veteran’s ongoing complaints of knee pain since he slipped and feel in service. However, the examiner noted that the Veteran had bilateral knee x-rays in 2015. The x-rays revealed minimal patellar spurring and otherwise no findings of osteoarthritis. Both knees had similar findings. Therefore, the examiner reasoned it was unlikely that the Veteran’s current osteoarthritis of the left knee was due to the fall in service. Rather, the examiner found the injury was not significant enough to cause the increased damage he observed, and the findings were likely the result of the Veteran’s age. The Board finds the examination opinions well-supported and based on review of the record prior to determining that the Veteran’s back and knee conditions were not associated with the Veteran’s service. See Taylor v. McDonald, 27 Vet. App. 158, 165 (2014). In light of the negative nexus opinions and lack of positive opinions to contradict the negative evidence, there is no basis for a grant of service connection for the Veteran’s lumbar spine and knee conditions. To the extent that the Veteran advances his own interpretation of his medical conditions indicating that his current back and knee disabilities are related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the probative value of the Veteran’s general assertions regarding the etiology of his conditions are outweighed by the probative value of the specific, reasoned opinion of the physician who provided the September 2019 VA opinions. Moreover, as previously discussed, the Board finds the Veteran not competent to provide an etiology as to his back and knee arthritis. Because the preponderance of the evidence weighs against the claim, the claim of entitlement to service connection for disabilities of the lumbar spine and left knee are denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.