Citation Nr: 21001857 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 05-36 072 DATE: January 12, 2021 ORDER Entitlement to service connection for a bilateral knee disorder, to include meniscal tear and/or osteoarthritis but not radiculopathy, to include as secondary to service-connected lumbar strain, is denied. Entitlement to service connection for vertigo, to include as secondary to service connected migraine headaches and/or tinnitus, is denied. FINDINGS OF FACT 1. The Veteran’s bilateral knee disorder did not begin during active service, is not otherwise related to an in-service injury or disease, arthritis did not become manifest to a compensable degree within the applicable presumptive period and it was not caused or aggravated by service-connected lumbar strain. 2. The Veteran’s vertigo was not incurred in service, is not otherwise causally or etiologically related to service, did not become manifest to a compensable degree within the applicable presumptive period and is not caused or aggravated by service connected migraine headaches and/or tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder, to include as secondary to service connected lumbar strain, are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.310. 2. The criteria for service connection for vertigo, to include as secondary to service connected migraine headaches and/or tinnitus, are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to September 1978. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Lost Angeles, California. Jurisdiction of this appeal is currently with the RO in Oakland, California. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in October 2014. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in August 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board directed the RO to obtain addendum VA opinions with regard to the Veteran’s claims. On remand, the RO obtained such addendum opinions. Thus, the RO substantially complied with the August 2018 Board remand directives. See 38 U.S.C. § 5103A (b) (2012); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The case has now been returned to the Board for appellate action. In addition, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for migraine headaches and assigned an initial rating. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis is presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Bilateral Knee Disorder The Veteran asserts that he has a bilateral knee disorder, to include bilateral knee osteoarthritis, that is as a result of his active service. Specifically, the Veteran testified that his knees were injured in the same injury that caused his back and neck disorders; and that his knee disorders are caused by the nerve damage from his low back disorder. See Board Hearing Transcript, November 6, 2014. Additionally, the Veteran’s representative argues that the July 2016 VA opinion is inadequate, and notes that the opinion ignored lay assertions regarding continued symptomology. See Appellate Brief, June 25, 2018. Initially, the Board notes that service connection is currently in effect for lumbar strain superimposed on degenerative disc disease, degenerative arthritis, and intervertebral disc syndrome (IVDS), radiculopathy of the left lower extremity associated with his lumbar strain and cervical strain superimposed on degenerative disc disease and degenerative arthritis. In light of the fact that service connection is already in effect for radiculopathy of the left lower extremity, the Board has recharacterized the issue on appeal to more expressly focus on his bilateral knee osteoarthritis and right knee meniscal tear. Turning to the evidence of record, service treatment records show complaints of trick or locked knee. See e.g. Service Treatment Record (STR), October 21, 1976; see also STR, May 22, 1975; see also STR, September 20, 1978. Additionally, the Veteran had absent knee reflexes that were equal. See STR, January 14, 1977. The Veteran was afforded a VA examination in July 2016. At that time, the examiner diagnosed a right knee meniscal tear, and bilateral knee joint osteoarthritis. The examiner opined the Veteran’s bilateral knee disorder was less likely than not incurred in or caused by an in-service injury, event or illness. With regard to secondary service connection, the July 2016 VA examiner opined the Veteran’s bilateral knee disorder was not caused or aggravated by his service-connected low back disorder. The March 2018 Joint Motion for Remand determined that the July 2016 VA opinion was inadequate. The Veteran was afforded another VA examination in January 2020. At that time, the examiner opined that it was less likely than not that the bilateral knee disorder was incurred in or caused by a claimed in-service injury, event, or illness. In this regard, the examiner noted service treatment records showing the Veteran indicated “don’t know” for a knee condition at his May 1975 enlistment examination, that the October 1976 documented motor vehicle accident when the Veteran sustained neck and back injuries and noted there was no mention of a knee injury in that record; the report of “locked” knee in October 1976 and that absent reflexes in November 1976; and the September 1978 separation examination showing the Veteran indicated “yes” for a locked or trick knee. The examiner noted that decreased reflexes “but equal” suggests an unconcerning examination because knee reflexes have nothing to do with knee pathologies, and many people have naturally decreased knee reflexes. The examiner noted that the only service treatment record that suggested a knee problem is the September 1978 separation examination indication of a trick or locked knee and the examiner noted this was made without explanation. The examiner further noted post-service treatment records, and found the Veteran had a mild diagnosis of mild osteoarthritis shown on x-ray in April 2014. Given that the osteoarthritis was characterized as “mild,” they were likely naturally occurring wear and tear due to age and unlikely that a low back disorder sustained from a motor vehicle accident occurring over three decades prior would cause mild bilateral knee osteoarthritis. Additionally, the examiner noted that given the extensive amount of time that had passed since military service and the more recent evaluation for bilateral knee issues, and after weighing all of the evidence together, the examiner opined it was less likely than not that the bilateral knee disorder was as a result of an in-service event. With regard to secondary service connection, the January 2020 VA examiner opined the Veteran’s bilateral knee disorder was less likely than not proximately due to or the result of the Veteran’s service connected lumbar strain. In this regard, the examiner noted that determining whether the knee disorder was proximately caused by lumbar strain or aggravated by lumbar strain is by circumstantial reasoning; and generally speaking, musculoskeletal issues of weight-bearing nature tend to effect proximally and not distally. Since the back is proximal to the knees, it was unlikely that the back was causing or aggravating the knees. The examiner noted the Veteran had a diagnosis of mild osteoarthritis shown on X-ray in April 2014, and noted the Veteran’s age. Given that the osteoarthritis was characterized as “mild,” they were likely naturally occurring wear and tear due to age and unlikely that a low back disorder sustained from a motor vehicle accident occurring over three decades prior would cause mild bilateral knee osteoarthritis. Furthermore, specialist note that the osteoarthritis and possibly patellofemoral patella syndrome caused knee pain without involvement from the back. Therefore, the examiner opined that it was less likely than not that the bilateral knee disorder was proximately caused by the service connected low back disorder and it was less likely than not that the bilateral knee disorder was aggravated beyond its natural progression by the service connected low back disorder. The Board has first considered whether service connection for a bilateral knee disorder is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested arthritis to any degree within the one year following his discharge from active duty in September 1978. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for bilateral knee arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Based on the foregoing, the Board finds that service connection is not warranted for a bilateral knee disorder. The record does not establish a causal link between the Veteran’s service and his bilateral knee disorder. In this regard, the Board notes that the January 2020 VA examines opined that the Veteran’s bilateral knee disorder was less likely than not as a result of his active service, and more likely due to aging and natural wear and tear, was less likely than not caused or aggravated by his service-connected lumbar strain and began many decades after separation from service. The Board affords significant probative value to these opinions, which assesses the nature of the Veteran’s bilateral knee disorder against his military service and statements thereon. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no contrary opinion of record. The Board notes the Veteran's October 2014 testimony that he injured his right knee in service in the same accident whereby he injured his lumbar and cervical spine. However, as discussed above, the contemporary evidence contradicts this assertion, and there are no medical findings of record related to the knee until over 30 years after his period of service, despite numerous complaints and extensive treatment for other parts of the body related to the accident. Moreover, this assertion by the Veteran is contradicted by his statement to the July 2016 VA examiner where he denied specific injury in military service, but stated that his knee condition was secondary to his low back condition. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record). Thus, to extent Veteran asserts that he experienced knee problems following his October 1976 accident, the Board finds such assertions not credible. The Board notes that the Veteran has contended that his bilateral knee disorder is the result service, and were caused by the same motor vehicle accident that resulted in his neck and back injuries; and or secondary to his service-connected low back disorder. The Board also notes the Veteran’s representative’s assertions that his lay statements should render the July 2016 VA opinion inadequate. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, supra. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s bilateral knee disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current bilateral knee symptoms, the Board accords his statements regarding the etiology of such a disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Hence, the Board finds that he is not competent to provide a medical opinion to support this claim on the basis of his assertions alone. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. The Board finds that the only probative medical evidence of record, the findings and January 2020 opinions, to be of greater probative value than the Veteran’s lay contentions. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Vertigo The Veteran asserts that he has vertigo that is as a result of his active service. Specifically, the Veteran testified that his vertigo is caused by his service-connected tinnitus and migraines. See Board Hearing Transcript, November 6, 2014. Additionally, the Veteran’s former representative argues that the July 2017 VA opinion is inadequate, and notes that the opinion relied on a lack of service treatment records and ignored all lay evidence, to include the Veteran’s reports at separation. See Appellate Brief, June 25, 2018. Turning to the evidence of record, service treatment records show complaints of dizziness or fainting spells. See STR, September 20, 1978. The Veteran was afforded a VA examination in May 2012. At that time, the examiner diagnosed benign paroxysmal positional vertigo (BPPV). The Veteran stated the condition began in 2000, and reported it was the same as his tinnitus. An opinion as to the nature and etiology of his BPPV was not provided at this time. The Veteran was afforded a VA examination in July 2016. At that time, the examiner opined that BPPV was incurred in or is otherwise related to service. In this regard, the examiner noted the Veteran did not mention dizziness or vertigo during service and noted that the Veteran marked “yes” for dizziness at separation without any other entries found. The examiner noted that the natural history of BPPV is one of repeated, brief vertiginous episodes that are predictably provoked and continue for weeks or months; and that episodes may recur. BPPV was generally attributed to otolithic debris within a semicircular canal and can be treated by canalith repositioning maneuvers. The Veteran was afforded a VA examination in January 2020. At that time, the examiner opined that it was less likely than not that the Veteran’s vertigo incurred in or was caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that there were no service treatment records indicating the Veteran was treated for vertigo and noted the Veteran marked “yes” to “dizziness or fainting spells” during service without any explanation. The examiner noted that in general, the term “dizziness” can be used by patients, but is medically differentiated from “vertigo” or “presyncope.” In this regard, vertigo is a sensation of movement, whereas presyncope is lightheadedness or feeling of fainting spells and noted that the reason for this differentiation is that the common description is dizziness, but vertigo and presyncope are from different body systems. Therefore, the examiner could not medically determine the significance, if any, of the report of dizziness or fainting spells on the separation examination. Moreover, the examiner noted that the Veteran had a diagnosis of BPPV at his May 2012 examination, but that there were no other records showing such diagnosis; and noted the Veteran complained of, on numerous occasions, dizziness but was found to deny vertigo and dizziness at other times. Therefore, the examiner found that if the “dizziness” is related to his headaches or tinnitus, then it is merely a symptom and not a separate or distinct pathology. Thus, in weighing all of the evidence, the examiner opined it was less likely than not that vertigo as a separate chronic condition, such as BPPV, was incurred in service. The Board has first considered whether service connection for vertigo is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. With respect to the post-service medical records, the first clinical evidence of vertigo was in 1999, more than 20 years after service discharge. Such is clearly well beyond the one-year post-discharge period for establishing service connection for an organic disease of the nervous system on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Based on the foregoing, the Board finds that service connection is not warranted for vertigo. The record does not establish a causal link between the Veteran’s service and any currently present vertigo. In this regard, the Board notes that the July 2016 and January 2020 VA examiners opined that the Veteran’s vertigo was less likely than not as a result of his active service, and not as a result of his service-connected migraine headaches or tinnitus. The Board affords significant probative value to these opinions, which assesses the nature of the Veteran’s bilateral knee disorder against his military service and statements thereon. Nieves-Rodriguez v. Peake, supra. There is no contrary opinion of record. The Board also notes the Veteran’s former representative’s assertions that his lay statements should render the July 2016 VA opinion inadequate. Specifically, the representative argues that the July 2016 VA examiner improperly discounted in-service complaints of dizziness or fainting spells and failed to provide an adequate rationale. However, the July 2016 VA examiner specifically noted that the Veteran had marked “yes” for dizziness at service separation and that no provider had noted or mentioned dizziness. The July 2016 VA examiner explained why a diagnosis of BPPV was warranted, the clinical manifestations of BPPV and described the Veteran’s post-service complaints of dizziness in 2015. This argument is therefore without merit. The Board notes that the Veteran has contended that his vertigo is the result service; and or secondary to his service-connected migraine headaches and tinnitus. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, supra. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s vertigo and any instance of his service to be complex in nature. Woehlaert v. Nicholson, supra. Specifically, while the Veteran is competent to describe his current symptoms, to include dizziness, the Board accords his statements regarding the etiology of such a disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, supra. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Hence, the Board finds that he is not competent to provide a medical opinion to support this claim on the basis of his assertions alone. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. These arguments are therefore without merit. The Board finds that the only probative medical evidence of record, the findings and opinions of the July 2016 and January 2020 VA examiners, to be of greater probative value than the Veteran’s lay contentions. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.