Citation Nr: 21001580 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-03 645 DATE: January 11, 2021 ORDER Entitlement to service connection for a lumbosacral strain with thoracic osteophytes, is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition, secondary to a left knee condition is remanded. FINDING OF FACT The Veteran’s current low back disability is not related to active service, nor did it manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from October 1980 to October 1983. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 Regional Office (RO) rating decision. As a matter of procedural background, this appeal previously came before the Board in November 2019, at which time it remanded the claim for further development. Prior to the Board issuing that remand, in August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In regard to the low back condition, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained from the Virginia Department of Corrections -Deerfield Correction Center (Deerfield) and associated with the claims file, and a VA opinion was obtained, which the Board finds adequate for adjudication. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in June 2020. Accordingly, the Board finds that the Remand directive was substantially complied with and, thus, there is no Stegall violation regarding this issue. Entitlement to service connection for a lumbsacral strain, with thoracic osteophytes The Veteran, directly and through his representative, asserts that his low back disorder is related to an in-service injury. Specifically, the Veteran recalls hearing his back “pop” while pulling a 500-pound cable from a generator to a missile launcher while on active duty. In his August 2019 hearing testimony, the Veteran asserts that his back disorder stems from this injury. Generally, to establish service connection for a present disability, "the 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." Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Based on the evidence of record, service connection is not warranted for a lumbosacral strain with thoracic osteophytes, because the evidence does not show that the disorder is related to or onset during the Veteran's service, or within a year of separation. First, the Veteran’s service treatment records do not reflect a diagnosis of a chronic low back disability in service. Service treatment records (STRs), including one dated September 1982, corroborate treatment for low back pain characterized as a muscle strain. This injury is corroborated by the Veteran’s testimony and the statement of a buddy, dated July 2020. The Veteran also reported, in September 2014, an in-service diagnosis of arthritis, despite not submitting specific information, to include the dates or circumstances of any such diagnosis. Regardless, the evidence reflects that any low back symptoms caused in this incident were temporary. Indeed, in-service treatment, including x-rays from throughout his enlistment period, indicates the Veteran sought treatment for his hand and chest, but only once for his back. The September 1982 treatment note for his back included the physician’s note that he would consider a specialist consult if the Veteran’s back symptoms persisted. No other treatments or reference to a consult is in the record. At his October 1983 examination, the last in-service examination of record, the Veteran checked “no” to “recurrent back pain”. Based on the medical evidence, the Board concludes that any in-service back symptoms suffered in service resolved before discharge. Moreover, the first post-service medical record addressing the Veteran’s low back pain is from October 2012, while incarcerated in Buckingham Correctional Center. This follows an initial intake health assessment performed by the Virginia Department of Corrections in February 2011, when the assessing physician noted indications of prior surgeries, cysts and eyesight issues, but wrote that the back and spine were normal. Additionally, the Veteran presented to the Deerfield physician in December 2013 for “persistent back pain” with a reported onset of two years prior – nearly thirty years after service. While the veteran asserts that he developed chronic back pain in-service, his Deerfield medical records show a normal spine at intake, and his own statement that his 2013 back pain began well after separating from the Army. Therefore, service connection cannot be granted based on continuity of symptoms or the Veteran’s statement. Moreover, the evidence does not establish a medical nexus between the Veteran’s current disability and his military service. Specifically, at his December 2019 VA examination the examiner diagnosed him with a lumbosacral strain and thoracic osteophytes, however she opined that they were less likely than not related to his service. The examiner reviewed his STRs, concluding that his in-service back pain was not chronic, but acute in nature. This, combined with no notes of treatment or complaints until 2011, led the examiner to determine that his current disability is not related to his in-service injury. Accordingly, the evidence is against finding a nexus to service. In arriving at this conclusion, consideration has been given to the personal and buddy statements submitted on behalf of the Veteran, relating his current back disorder to his injury in service. Specifically, the July 2020 buddy letter, in which the author stated while in the Army, he witnessed the Veteran with a limping gait while on light duty due to a back injury. The letter continued to state that he ran into the Veteran “many years later” and witnessed the same limping gait as the Veteran complained of back pain. The Federal Circuit has held that “[l]ay 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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, neither the Veteran nor the author of his July 2020 buddy statement is competent to provide testimony regarding the etiology of a back disorder. See Jandreau, 492 F.3d at 1377, n. 4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Considering the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a lumbosacral strain and thoracic osteophytes, and there is no doubt to be otherwise resolved. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition is remanded. 2. Entitlement to service connection for a right knee condition secondary to a left knee condition is remanded. As much as the Board sincerely regrets any further delay in the adjudication of the remaining claims on appeal, further development is necessary before this appeal can be adjudicated. The Board finds that the Veteran’s December 2019 VA examination addressing the nature, etiology, and severity of his left and right knee conditions is inadequate. In this case, the examiner opined that his left knee condition was not related to service. Likewise, the examiner found the right knee condition not directly related to service, or caused by a service-connected left knee disability. However, the examination report does not reflect that the examiner considered reports in the STRs of both left and right knee injuries. The examiner’s evidentiary comments state that there are no reports of either knee condition in the STRs. A review of the STRs show complaints of bilateral knee pain, including a complaint of left knee pain noted in the Veteran’s October 1983 separation examination. Given the examiner’s brief statements, the Board is unsure whether the examiner consider the evidence in the medical record of an in-service injury. As such the examination is inadequate and the Veteran should be provided a VA examination to determine the etiology of his left and right knee disorders. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the December 2019 VA examination (or a comparably qualified individual), regarding whether the Veteran’s left knee condition is at least as likely as not related to an in-service injury, event, or disease. The examiner should pay particular attention to the Veteran’s service treatment records for references of knee pain. 2. The addendum opinion should also determine the nature and etiology of the Veteran’s right knee condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event or disease, including secondary to the Veteran’s left knee condition.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald