Citation Nr: 21065567 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-29 148 DATE: October 26, 2021 ORDER Service connection for a chronic low back disorder is denied. Service connection for a bilateral knee disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from March to September 2004 and from May 2007 to June 2008. 2. Scoliosis was noted at enlistment to service, but it was found to have no functional impairment; in-service complaints of back pain have not been related to the current diagnosis of arthritis of the lumbar spine or an aggravation of the preexisting scoliosis. 3. In-service complaints of bilateral knee pain have not been related to the current diagnosis of bilateral knee strain and bilateral knee patellofemoral pain syndrome. CONCLUSION OF LAW 1. A chronic low back disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2021). 2. A bilateral knee disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021) REASONS AND BASES FOR FINDINGS AND CONCLUSION In March 2021, the Board remanded the issues on appeal. They now return to the Board for adjudication. The Regional Office (RO) substantially complied with the March 2021 Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a disorder is noted, the question is whether it was aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. Low Back Disorder Turning to the evidence, in a February 2004 enlistment examination, scoliosis was noted at less than 15 degrees which was found to be "NCD" (Not Considered Disabling). In the accompanying Report of Medical History, the Veteran self-reported that he had no recurrent back pain or any back problems. Given that scoliosis was not considered a disability at the time of entry, if there is any question of preexistence, the presumption of soundness would attach. A December 2020 VA examiner opined that it was less likely than not that the Veteran had a current low back disorder related to service, because the entrance examination noted a congenital defect of scoliosis, and no direct service condition was possible due to a pre-existing condition. While this opinion misread the entrance examination which actually indicated scoliosis was not a disability, it is sufficient to pose a question of preexistence. However, to rebut the presumption of soundness, the disability would have to clearly and unmistakably preexist service. Here, the February 2004 enlistment examination specifically found that scoliosis was not a disability. Further, the March 2008 post-deployment physical did not find scoliosis. July 2009 VA treatment record found no scoliosis and instead normal curvature of the spine, and a June 2021 VA examiner found no evidence of scoliosis and deemed the condition resolved. The evidence is not entirely clear if the Veteran still had scoliosis throughout and after service until eventually resolving. It may be said that while there is some question of preexistence, the evidence does not rise to the level of being clear and unmistakable, such that it could not be reasonably argued. While scoliosis of some degree may have existed, there is insufficient evidence that it existed to a disabling level such that the first prong of the presumption of soundness could be rebutted. As such, the presumption is not rebutted, and the service connection on a direct basis, rather than for aggravation of a preexisting injury, will be considered. Turning to direct service connection, the first element of service connection a current disability is met, as the Veteran was diagnosed with degenerative arthritis of the lumbar spine by a June 2021 VA examiner, interpreting May 2021 VA X-rays. As noted, at earlier points throughout the appeal period he had been diagnosed with a lumbar strain. Thus, the first element of service connection is met. Next, the second element an in-service incurrence is also met, as the service treatment records (STRs) show complaints of low back pain. Specifically, March 2008 STRs show complaints of back and joint pains, and April 2008 records show persistent low back pain when coughing. In the August 2008 post-deployment physical, the Veteran also complained of low back pain, although was not diagnosed with any back disorder. Nonetheless, the second element of direct service connection is met. However, the third element a medical nexus is not met, as no competent medical opinion has been submitted linking his current disability to service. A July 2019 VA examiner provided an opinion but appeared to discuss a knee disorder rather than a back disorder. An October 2020 VA examiner found it was less likely than not that the diagnosis of a lumbar spine was caused by a low back disorder in service, because after reviewing the file it appeared the low back condition was acute only while in service, with no chronicity of care. While the review of his medical records shown above does include periodic complaints of back pain, the record supports this opinion in that there was not consistent treatment for back pain since separation and throughout the appeal period. The final and most probative opinion comes from a June 2021 VA examination, in which the examiner found it was less likely than not that the Veteran's degenerative lumbar arthritis was caused by service. The examiner reasoned that there was no significant injury to his back during service that would leave life-long residuals, and that one year of active duty would not cause wear and tear on the spine sufficient to constitute a chronic disability. There are no contradictory medical opinions of record. Given the June 2021 VA medical opinion is competent and credible, the third element of service connection is not met, and the medical evidence does not support service connection on a direct basis. Next, given the Veteran is diagnosed with degenerative arthritis of the lumbar spine, service connection on a presumptive basis will be considered. To that end, VA X-rays dated in October 2020, more than 10 years after discharge, did not show any degenerative changes. Further, he was not diagnosed with a chronic disease during service. As such, the medical evidence does not support service connection due to diagnosis of a chronic disease in service or because of a chronic disease manifesting to a compensable disease in the year following separation from service. As to the issue of chronicity, in a March 2008 post-deployment physical (handwritten although the document itself said that it was to be filed electronically), the Veteran self-reported that he had no back pain, muscle aches, or swollen, stiff, or painful joints; however, he reported to the examiner that he had back and joint aches, but no diagnosis was identified. In April 2008, the Veteran reported nasal congestion, ear pain, and low back pain when coughing. The diagnosis was otitis media, and he was prescribed antibiotics and a decongestant. The evidence does not suggest that this was a back-related illness. Additionally, a post-service August 2008 periodic health assessment (two months after discharge), the Veteran complained of right heel, back, and knees. A physical assessment showed that he had full range of motion, was nontender, had no point tenderness, could heel to toe walk, and straight leg raises were negative. There were no limitations, and he was found to be deployable. The diagnosis was chronic low back pain. He was referred to VA follow-up care. Further, in a September 2008 post-deployment physical (which appears to be an updated electronic version of the March 2008 handwritten document), he did not note back pain when asked and the physical assessment from the clinician noted only symptoms of depression (for which he is service connected). In July 2009, the Veteran was identified in VA clinical records as a new patient. He reported, among other things, joint tenderness in the knees, heels, and back but the main complaint was related to mental health. A physical assessment revealed no kyphosis, no scoliosis and a normal curvature. There was no diagnosis made regarding the back but rather he was diagnosed with depression. Clinical records through 2009 reflect mental health treatment but no complaints related to the back. Additionally, a November 2009 VA Problem List included depressive disorder, anxiety disorder, and a removed undescended right testicle (from childhood); a low back disorder was not identified. In January 2010, the Veteran sought treatment for a sinus disorder and also a low back ache. He related that he was taking Tylenol for the back but wanted medication for sinus discomfort. There was no diagnosis regarding the back. In a March 2010 Dental Health Questionnaire, he denied having arthritis or painful joints. In June 2010, the Veteran underwent an annual physical visit and reported low back and neck pain. The clinical assessment was lower back mild myalgia but was otherwise unremarkable. In an August 2010 routine visit, pain was listed as 3 but the area of pain was not identified. In September 2011, the Veteran filed a claim, for among other things, a low back disorder. Clinical records throughout 2010-2012 reflect treatment primarily for mental health issues; no back complaints were noted after June 2010, and no diagnosis made of a chronic low back disorder. In a March 2016 annual routine examination, the Veteran reported a 4-day history of left foot pain and chronic bilateral knee pain. There were no complaints related to the back. The Problem List dated in May 2017 and July 2017 reflected an anal fissure, mental health issues, gastrointestinal disorders (service connected), tobacco use, hyperlipidemia, and the removed right testicle. There were no complaints or diagnoses related to the back. Additional clinical records reflect complaints of hemorrhoids (service connected) but primarily treatment for mental health issues. In a September 2017 annual evaluation, the Veteran reported pain in the knees, but no back pain and no back symptoms were described. A physical examination showed that his gait was normal and there were no motor or sensory deficits. There was no diagnosis related to the back. Clinical records throughout 2017 and 2018 reflect primarily mental health treatment but no back complaints. In July 2018, the Board remanded the claim for additional development. Clinical records subsequently added to the file included an October 2018 annual physical where the Veteran reported knee joint pain but otherwise had no muscle aches. The Problem List remained the same. In a March 2019 physical, he again reported knee pain but no back pain. At a March 2019 annual physical, the Veteran reported knee pain but not back pain. The Problem List remained unchanged with no notation regarding back problems. A physical examination revealed that his gait was normal and there were no motor or sensory deficits. There was no diagnosis related to the back. Clinical records primarily show ongoing treatment for mental health. In a July 2019 VA examination, the Veteran reported gradually experiencing sharp pain in the lower back and having difficulty lifting or bending forward since 2018. As he reported an onset of 2018, this suggests that the symptoms started approximately 10 years after discharge. The examiner noted diagnoses of congenital scoliosis and thoracolumbar strain. The examiner reviewed the claims file, including noting the 2008 issues with the back and knees and the diagnosis of chronic low back pain in August 2008 and low back mild myalgia in June 2010. The examiner reflected that there was no formal diagnosis in service and pain was a symptom but not a chronic disability. The examiner concluded that the lumbosacral strain was not related to active duty. At the October 2019 annual examination, the Veteran reported pain in the lower back and bilateral knees. A physical examination revealed that his gait was normal and there were no motor or sensory deficits. There was no diagnosis regarding the low back identified. Clinical records throughout 2019 and 2020 reflect primarily treatment for mental health and no complaints related to the back. In August 2020, the Board again remanded the issue for further development. At an October 2020 VA examination, the examiner reviewed the claims file and noted complaints related to the back since 2008, including the Veteran's statements regarding back symptomatology. At that time, the Veteran reported lower back pain with a gradual onset while in service due to physical training, hand to hand combat, military training and high-impact activities. After a physical examination, the examiner concluded that the diagnosis of lumbar strain was less likely than not incurred in or caused by the low back complaints in service. The examiner found that the in-service complaints were acute (as opposed to chronic) and there was no evidence of chronicity of care. In an October 2020 clinical note, the Veteran reported pain in the bilateral knees and lower back. In the telemedicine call with his health care provider, he denied any acute problems and was working full time. There was no opinion rendered as to a relationship between the back complaints and service. In a December 2020 addendum to the October 2020 VA examination, the clinician found that the Veteran's low back disorder was less likely than not incurred in or caused by service. The clinician reasoned that a congenital defect of scoliosis was noted at enlistment and that no direct service connection was possible due to a pre-existing disorder. However, the clinician did not address the issue of aggravation. A February 2021 Problem List had essentially remained unchanged and included sleep apnea, an anal fissure, mental health issues, GERD, diarrhea, tobacco use, cholecystectomy, hyperlipidemia, and an undescended right testicle since childhood. In March 2021, the issue was again remanded for a medical opinion. In a June 2021 VA examination, the Veteran reported (and the examiner acknowledged) the onset of symptoms as 2008 with gradual worsening but denied any specific injury and attributed condition to wear and tear. The examiner considered the evidence in the claims file as well as the Veteran's lay statements that he could not drive for long periods of time. After a physical examination, including X-rays, the examiner diagnosed mild degenerative changes of the lower lumbar spine. The examiner again reviewed the claims file and noted the reports of chronic back pain in August 2008 and myalgia diagnosed in June 2010 plus additional post-service records noting back pain. The examiner found that there was no evidence of significant injury to the back during service that would leave life-long residuals and one year of active duty would not cause wear and tear on the spine to constitute a chronic disability. The examiner found there was no evidence of scoliosis as it was resolved and concluded that degenerative arthritis was less likely than not incurred in or caused by service. Collectively, there is evidence of back pain at various points following separation until his June 2021 diagnosis with a chronic disease. However, his symptoms are not shown consistently throughout his medical records, despite receiving treatment throughout the appeal period. Specifically, in 2013 through until September 2016, despite having frequent VA medical treatment, there is no diagnosis of, complaints of, or treatment for back pain. Following a September 2016 complaint of lower back pain, treatment records are again largely silent until March 2019. As such, while the record shows periodic treatment for back pain, it does not reflect continuity of symptomatology. There are various stretches following separation from service in which he either did not report any back pains or actively stated he did not have any joint pain. As such, the medical evidence does not support presumptive service connection. Bilateral Knee Disorder Turning to the evidence, the first element of service connection a current disability is met, as a June 2021 VA examiner confirmed diagnoses of bilateral knee strain and patellofemoral pain syndrome. As such, the first element of service connection is met. Next, the second element an in-service incurrence is also met, as the STRs show complaints of knee pain. Specifically, his August 2008 post deployment evaluation showed complaints of knee pain, which he stated he had for several years. As such, the second element is met. However, the third element a medical nexus is not met, as no competent medical professional has linked his current knee disorders to service. An October 2020 VA examiner found it was less likely than not that the knee disorders were caused by service, finding that his STRs only showed acute knee pain. Further, the examiner stated there was no chronicity of care. While the VA treatment records show periodic complaints of bilateral knee pain, it is not continuous since separation. A December 2020 addendum opinion stated there were no complains of knee pain between release of active duty and May 2016, although this is inaccurate as July 2009 VA medical records do show complaints of knee pain. In a June 2021 VA examination, the examiner found it was less likely than not that the Veteran's knee disorders were due to service because there was no significant knee injury in service that would leave life-long residuals, and one year of active duty would not cause the wear and tear on his knees to constitute a chronic disability. As this opinion more accurately reflects the record, it is the most probative of record. Further, there is no medical opinion that links the Veteran's knee disorders to service. Therefore, the third element is not met, and service connection for a bilateral knee disorder is not warranted by the evidence. The Board has considered the Veteran's lay statements that that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.