Citation Nr: 21064471 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-29 016 DATE: October 20, 2021 ORDER Entitlement to service connection for left knee pain is denied. Entitlement to service connection for right knee pain is denied. Entitlement to service connection for back pain is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that left knee pain began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that right knee pain began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that back pain began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right knee pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for back pain have not been met. 38 U.S.C. §§ 1110, 1131, 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 February 1979 to June 1979 and from October 1980 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in June 2019 instructing the RO to obtain VA examinations to determine the nature and etiology of the Veteran's back pain and knee pain. A review of the service treatment records was also required. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained November 2019 VA examinations, reviewed the Veteran's service treatment records, and issued a Supplemental Statement of the Case. The Board finds the RO substantially complied with the June 2019 remand directives. 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. §§ 1110, 1131, 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). 1. Entitlement to service connection for left knee pain. 2. Entitlement to service connection for right knee pain. The Veteran contends that his knee pain was caused by his military service. During the January 2019 Board hearing, the Veteran stated that he was a "63 Hotel" track vehicle mechanic in service. His duties were to maintain M1 and M60 tanks and anything from engine repair to transmission breakdowns. This involved climbing, bending, and standing on concrete for several hours every day. In service, he was on profile for doing deadlifts. He received a diagnosis for his knees in service and have received treatment several times since service. Service treatment records (STR) do not show a complaint, treatment, or diagnosis of a knee disability. Post-service treatment records do not show the Veteran developed a knee disability within one year after service. See e.g., December 2011 VA Primary Care Note; May 2014 Persian Gulf Exam. The Veteran underwent a VA examination in May 2016. It was found to be inadequate because the medical examiner's opinion, in part, was based on the unavailability of the Veteran's service treatment records. Therefore, the Veteran was afforded another examination in November 2019. The examiner confirmed the Veteran had a diagnosis of bilateral mild to moderate medial compartment osteoarthritis. The Veteran reported that he started having bilateral knee pain in 1989 due to wear and tear repetitive military duties. It was treated acutely. The pain continued and worsened 1 year ago. He managed the pain by the primary care physician and orthopedics. He had a right knee steroid injection 6 months ago, but it was ineffective. There was no recent trauma, no visits to the ER, hospitalizations, or surgeries. He used a cane regularly. The examiner opined that the Veteran's bilateral knee pain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the service treatment record and separation exam did not indicate any diagnosis of left and right knee pain during service. A May 2015 x-ray showed a mild medial and minimal patellofemoral compartment osteoarthritis, mild quadriceps enthesophyte, and small joint effusion. This was several years from the release from active duty. There was no continuous care treatment. The physical exam the examiner performed revealed left knee pain and right knee pain consistent with left knee osteoarthritis. For this reason, the examiner wrote that it was logical to attribute left knee osteoarthritis to the Veteran's advancing age wear and tear, physical repetitive job-related left knee joint stress as a residential/building inspector over the years, and elevated body mass index (BMI). A nexus has not been established. The Board acknowledges the Veteran's contentions that his current knee disabilities are related to his duties in service. A lay person is not considered competent to medically attribute a knee disability to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the objective medical evidence of record answered this question. The evidence showed the Veteran did not complain of knee pain while in service. His complaint of knee pain started many years after service. Medical opinions of record found the Veteran has osteoarthritis which was attributable to aging. The Veteran has not submitted any medical opinions to contradict this finding. Accordingly, the criteria for entitlement to service connection for left and right knee disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for left and right knee disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for back pain. The Veteran contends that his back pain was caused by his military service. During the January 2019 Board hearing, he testified that he was told that his back problems were due to his legs. He walks with a limp. He also experienced sharp pain in his back with muscle spasms. STR indicate the Veteran complained of back pain while in service. See December 1980 STR (back pain for one day; muscle spasms from lifting); January 1990 STR (back pain for one hour). Post-service treatment records do not show the Veteran developed a back disability within one year after service. See e.g., October 2012 Darnall Medical Center Note (back started hurting on left lower side four days prior); May 2014 Persian Gulf Exam. The Veteran was afforded a VA examination in November 2019. The Veteran confirmed that the Veteran had a diagnosis of degenerative arthritis of the spine and marginal hypertrophic degenerative change superior margins of L4 and L5. The Veteran reported that his back pain started in 1980 while lifting heavy equipment. He pulled his back. He was diagnosed with lumbar strain, given medication, and a temporary profile until the pain went away. However, he continued to have exertions in the 1990s. He strained it again and were given the same interventions. He was given muscle relaxant, but he continued to have discomfort with activities. The examiner opined that the Veteran's back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the service treatment record and separation exam did not indicate any diagnosis of lumbar pain during service. There were no sufficient pertinent records to support lumbar pain concerns and definitive diagnosis in service or post service. An x-ray was completed during the examination which revealed Degenerative Disc Disease L5-S1 and a Marginal Hypertrophic degenerative change superior margins of L4 and L5. See November 2019 SXT Medical Report. The physical examination showed back pain consistent with lumbosacral degenerative arthritis. It is logical to attribute this to the veteran's advancing age wear and tear physical repetitive job related lumbar joint stress as a residential/building inspector over the years, and elevated body mass index (BMI). Today his BMI was 30.4 indicating an obese condition. The study shows that these above conditions contribute to lumbar arthritis. A nexus has not been established. The Board finds that the grant of service connection for back pain is not warranted. The service treatment records indicate the Veteran complained of acute back pain, but he did not receive a diagnosis. A disability did not develop within one year after discharge from service and several times through the records the Veteran stated that the back started after service. Examination revealed the Veteran to have a disability that is attributable to aging. No objective evidence is of record to oppose this finding. Accordingly, the criteria for entitlement to service connection for back disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for back disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.