Citation Nr: 21001585 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-01 968 DATE: January 11, 2021 ORDER Service connection for a low back condition is denied. Service connection for a right knee condition is denied. Service connection for a left knee condition is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s low back condition began in or was otherwise caused by the Veteran’s active military service. 2. The weight of the evidence is against finding that the Veteran’s bilateral knee condition began in or was otherwise caused by the Veteran’s active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to October 1996. The Veteran’s service connection claims for a low back and bilateral knee condition were previously before the Board in February 2015 and in October 2016 and remanded for further development, to include obtaining outstanding treatment records. The issues were most recently before the Board in June 2018. The Veteran provided positive nexus opinions for both his low back and his bilateral knee conditions. However, the Board in June 2018 found that the opinions did not have enough probative value upon which to base service connection. Regarding the service connection claim for a low back condition, the issue was remanded to allow the Veteran to provide clinical evidence of a current disability and to obtain a supplemental medical nexus opinion. Regarding the service connection claim for a bilateral knee condition, the issue was remanded for a supplemental medical nexus opinion. The Board also notes that the examiner was asked to specifically review the Veteran’s STRs, his post-service medical records, and the 2010 private and VA examination reports. The Veteran was afforded VA examinations in August 2019 and the examiner provided nexus opinions regarding the low back and both knees, with an addendum opinion, as to the low back, provided in October 2019. The examiner indicated that they reviewed the pertinent evidence pointed out by the June 2018 remand. As such, the Board finds that there has been substantial compliance with the June 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Service Connection Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004).  1. Service connection for a low back condition is denied. The Veteran asserts that his low back condition is related to an in-service automobile accident. The Veteran’s service treatment records (STRs) do not discuss any in-service car accidents, but he was seen in May and June 1995 for low back pain. He was placed on light duty for one week and exempted from a physical fitness test. His October 1996 Report of Medical History for separation purposes shows that he specifically denied recurrent back pain. The Board notes that an April 1993 Report of Medical History shows that he also denied having experienced recurrent back pain. The Veteran submitted a medical report from a chiropractor in April 2010. The chiropractor reported that the Veteran had experienced persistent low back pain since 1995, after an in-service automobile accident. The chiropractor diagnosed the Veteran with a herniated disc at L5. The chiropractor opined that it was more likely than not that the Veteran’s low back injury was directly and causally related to an in-service motor vehicle accident. The Veteran was afforded a VA examination in July 2010. The Veteran reported that he had low back symptoms after an in-service automobile accident while stationed in North Carolina. He indicated that he had pain about 1-2 times a year, which lasted for a few weeks. On examination, he showed full range of motion in his spine and there was no objective evidence of pain on either initial active motion, or after repetitive use. The examiner reviewed the Veteran’s lumbar spine x-rays and found that they were normal. As previously discussed, the June 2018 Board decision found that the April 2010 private opinion to not have enough probative value upon which to base service connection. The Board explained that there were conflicting reports of persistent pain in the Veteran’s low back since 1995, as reported in the chiropractor’s examination report. For example, at the July 2010 VA examination, the Veteran reported that he only had low back pain 1-2 times a year, which lasted for a few weeks at a time; and also pointed out that the Veteran denied recurrent back pain at the 1996 separate physical. The Board noted that the diagnosis of a herniated L5 disc by the chiropractor was not confirmed by radiographic testing and was actually contradicted by the report of the April 2010 VA examiner, that the lumbar spine x-rays were normal. Based on the Board’s findings, a new VA examination was ordered. The Veteran was afforded a VA examination in August 2019. The Veteran was diagnosed with degenerative arthritis of the thoracolumbar spine. The examiner reported that the Veteran was unable to perform range of motion testing because he was in severe pain. After an in-person examination and a review of the Veteran’s claims file the examiner provided a negative nexus opinion. The examiner explained that they were unable to find any objective evidence in the Veteran’s STRs documenting continuous medical management or treatment that would suggest chronicity, for any medical conditions that might be related to the current diagnosis of degenerative arthritis of the spine. The examiner reported that the Veteran’s low back injuries during service would not be expected to result in a chronic condition or residuals. The examiner provided an addendum opinion in October 2019 which explained that they reviewed the chiropractor’s opinion, the Veteran’s in-service reports of low back pain and the August 2019 VA examination report. The examiner once again provided a negative nexus opinion and utilized the same rationale for their August 2019 nexus opinion. The Board notes that since the June 2018 Board decision, which found the April 2010 private examination report did not have enough probative value to establish service connection, the Veteran has not provided any further medical evidence that suggests his low back condition is related to his active duty service. Here, there are two medical opinions of record. However, there is only one with enough probative value for which to make a determination as to whether service connection is warranted. The June 2018 Board decision found that the April 2010 nexus opinion was not sufficient because of conflicting evidence regarding the constant nature of back pain and whether the Veteran was diagnosed with a chronic condition and the Board finds no reason to come to a different conclusion. The Board finds that the nexus opinions provided by a VA examiner in August and October 2019 were sufficient because the examiner reviewed the medical evidence of record, to include those pointed out by the June 2018 Board remand directives and provided a sufficient rationale to support their conclusion. The examiner explained that the Veteran’s in-service low back injuries would not be expected to result in a chronic condition. As such, the Board affords the VA examiner of record more probative weight than the April 2010 chiropractor. The Board acknowledges the Veteran’s assertion that he believes his low back condition is a result of his active duty service. The Board has recognized the positive evidence, namely the in-service complaints of low back pain and his current diagnosis of arthritis. However, as explained, the Board has given the chiropractor’s opinion less probative value than the VA examiner’s opinion. The Board also acknowledges that the Veteran did not participate in range of motion testing for his back in 2019 because he was in severe pain. However, there is no contemporaneous medical evidence of record which suggests the Veteran is so limited in terms of pain or a limitation of motion that he cannot physically perform range of motion testing. For example, he was reported to be very active at work and reported doing hunting activities. See VA Treatment Record dated July 11, 2016. There has been no assertion that the Veteran is no longer able to work or is limited in his work or recreational activities because of severe back pain. To the extent that he believes that his low back condition is due to his active duty service, such a finding requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical nexus opinion regarding degenerative arthritis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, given that the Veteran had in-service complaints of low back pain and a provided a positive nexus opinion from his chiropractor, a new VA examination was ordered. Unfortunately, the August 2019 VA examiner found that the medical records did not support a finding that in-service complaints of low back pain resulted in the development of degenerative arthritis of the lumbar spine. The Board is sympathetic to the Veteran’s claim and does not wish to minimize his assertions or beliefs. However, the criteria for service connection have not been met. Here, the weight of the evidence is against the claim. Accordingly, service connection for a low back condition is denied. 2. Service connection for a bilateral knee condition is denied. The Veteran asserts that his bilateral knee condition is due to basic training and walking and running on uneven ground during his active duty service. The Veteran’s STRs show that he was diagnosed with a left knee strain in August 1984 and a probable right knee strain in August 1987. He was also diagnosed with a right knee bruise in September 1987. His October 1996 Report of Medical History for separation purposes shows that he denied swollen or painful joints and denied a “trick” or locked knee. The Veteran submitted a medical report from a chiropractor in April 2010. The chiropractor reported that the onset of the Veteran’s bilateral knee pain was during basic training and after walking and running on uneven ground during his active duty service. The chiropractor noted that the Veteran presented on multiple occasions to the sick bay for knee pain. The chiropractor opined that it was more likely than not that the Veteran’s knee pain was directly and causally related to chronic trauma by walking and running on uneven ground during his active duty service. The Veteran was afforded a VA examination in July 2010, at which he reported gradual knee symptoms during basic training. He reported that he was not being currently treated for his bilateral knee symptoms but reported the following symptoms: aggravation while standing, walking, squatting, and sitting. An x-ray of his knees showed early degenerative changes on both sides. After an in-person examination and a review of the Veteran’s claims file, the examiner provided a negative nexus opinion. The examiner acknowledged the knee strains diagnosed in 1984 and 1987, but also noted the October 1996 separation examination, which showed a normal clinical examination of both knees. The examiner explained that the Veteran’s in-service knee strains were 25 years prior to the examination and the degenerative arthritis was more likely due to the aging process. As previously discussed, the June 2018 Board decision found that the April 2010 private opinion to not have enough probative value upon which to base service connection. The Board explained that there were conflicting reports on the Veteran’s range of motion in his knees. The chiropractor reported that the Veteran needed total knee replacements and that his knee pain and dysfunction were permanent and reported range of motion in both knees to 70 degrees and extension to negative 5 degrees, with significant pain. However, the July 2010 VA examination showed full range of motion in both knees, with no evidence of pain on active range of motion. The June 2018 Board decision also pointed out that the chiropractor failed to discuss that there were no complaints of knee pain in the last 9 years of service and denied knee pain upon separation. The Veteran was afforded a VA examination in August 2019 at which he reported that the onset of his knee pain was approximately 5-10 years earlier. He denied any acute direct or indirect knee injuries, but thought his knee pain was due to heavy physical activities in the military. The examiner confirmed that the Veteran was diagnosed with bilateral degenerative arthritis in both knees. The examiner reported that the Veteran was unable to perform range of motion testing because he was in severe pain. After an in-person examination and a review of the Veteran’s claims file, the examiner provided a negative nexus opinion. The examiner explained that based on the medical evidence of record, including the August 2019 VA examination suggested the onset of bilateral knee pain about 5-10 years prior, which was more than a decade after his separation from the military. The examiner did not find any objective medical evidence suggesting continuous medical management of treatment that would be suggestive of chronicity. The examiner concluded that the Veteran’s in-service knee strains would not be expected to have resulted in a chronic condition or residuals. The Board notes that since the June 2018 Board decision, which found the April 2010 private examination report did not have enough probative value to establish service connection, the Veteran has not provided any further medical evidence that suggests his bilateral knee condition is related to his active duty service. Here, there are three medical opinions of record. However, there are only two with enough probative value for which to make a determination as to whether service connection is warranted. The June 2018 Board decision found that the April 2010 private nexus opinion was not sufficient because of conflicting evidence regarding range of motion in the Veteran’s knees and the permanency of his knee dysfunction and the Board finds no reason to come to a different conclusion. The Board finds that the nexus opinions provided by VA examiners in July 2010 and October 2019 were sufficient because the examiners reviewed the medical evidence of record, acknowledged the Veteran’s in-service diagnoses of bilateral knee strains, and provided sufficient rationales to support their respective conclusions. The October 2019 examiner explained that the Veteran’s in-service knee strains would not be expected to result in a chronic condition. As such, the Board affords the VA examiners of record more probative weight than the April 2010 chiropractor. The Board acknowledges the Veteran’s assertion that he believes his bilateral knee condition is a result of his active duty service. The Board has recognized the positive evidence, namely the in-service diagnoses of bilateral knee strains and his current diagnosis of arthritis. However, as explained, the Board has given the chiropractor’s opinion less probative value than the two respective VA opinions. The Board also acknowledges that the Veteran did not participate in range of motion testing for his knees at the 2019 VA examination because he was reportedly in severe pain. However, there is no contemporaneous medical evidence of record which suggests the Veteran is so limited in terms of pain or a limitation of motion that he cannot physically perform range of motion testing. For example, he was reported to be very active at work and reported doing hunting activities. See VA Treatment Record dated July 11, 2016. There has been no assertion that the Veteran is no longer able to work or is limited in his work or recreational activities because of severe knee pain. To the extent that he believes that his bilateral knee condition is due to his active duty service, such a finding requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical nexus opinion regarding degenerative arthritis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, given that the Veteran had in-service diagnoses of bilateral knee strains and provided a positive nexus opinion from his chiropractor, a new VA examination was ordered. Unfortunately, the August 2019 VA examiner found that the medical records did not support a finding that in-service diagnoses of bilateral knee strains resulted in the development of degenerative arthritis of the knees. The Board is sympathetic to the Veteran’s claim and does not wish to minimize his assertions or beliefs. However, the criteria for service connection have not been met as the weight of the evidence is against the conclusion that the Veteran’s knee disabilities began in or were otherwise caused by his active military service. Accordingly, service connection for a bilateral knee condition is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.