Citation Nr: 21066336 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-51 945 DATE: October 29, 2021 ORDER Entitlement to service connection for a left knee disability, to include a left knee strain, is denied. Entitlement to service connection for a low back disability, to include lumbar spine degenerative joint and/or disc disease, also is denied. FINDINGS OF FACT 1. The Veteran's left knee strain was not shown as chronic in service and he did not have arthritis in this knee within a year of his discharge from service; moreover, continuity of symptomatology since his service is not established, and this disability is not otherwise shown to be related or attributable to his service. 2. The evidence also does not establish that his current low back disability is due to, the result of, or related to his service, and the evidence also is insufficient to establish degenerative joint or disc disease to a compensable degree within one year after his separation from service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a left knee disability, including for residuals of a strain. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria also are not met for entitlement to service connection for a low back disability. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1985. This appeal to the Board of Veterans' Appeals (Board) is from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a videoconference hearing in January 2020 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In March 2020, the Board remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to obtain all outstanding treatment records relevant to these claims, whether from VA and/or private providers, to ensure all service treatment records (STRs) are in the file, and then for further medical comment (addendum opinions) concerning the nature and etiology of the Veteran's left knee disability, especially in terms of whether related or attributable to his service and particularly to an injury to this knee during his service, also regarding the nature and etiology of his lumbar spine disability, especially in terms of whether related or attributable to his military service. The Board's remand orders where not complied with, but only initially, so the Board again remanded these claims in May 2021, and there since has been the required compliance, certainly the acceptable substantial compliance, with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These chronic diseases (so, again, arthritis) also may be presumptively service connected if they become manifest to a compensable degree (meaning to a degree of 10 percent or more) within one year of leaving qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed in terms of whether simple versus complex. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 1. Entitlement to service connection for a left knee disability, to include a left knee strain The Veteran points out that he injured his left knee during service, in basic training, and he contends that he has had continuing problems with this knee ever since, so his current left knee disability is attributable to that injury during his service. There is no disputing the Veteran has a current diagnosis of left knee strain. Additionally, a STR dated in August 1981 confirms a left knee injury during a track event. However, examination of this knee at that time revealed just minimal swelling and pain. The diagnosis was a strain of this knee. A subsequent STR from that same month, dated August 8, 1981 concerning a follow-up appointment, shows no left knee swelling or tenderness. It also was indicated the left knee strain had resolved. So, this claim has been denied thus far on the premise that the left knee injury in service was acute and transitory, so resolved, and did not result in any permanent (i.e., chronic) disability referable to this knee. The Board nonetheless twice remanded this claim for additional medical comment concerning this determinative issue of whether there is any relationship or correlation ("nexus") between the current left knee disability and that injury in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Those remands partly were because, during his January 2020 hearing before this Board, the Veteran had testified that he had experienced ongoing problems with his left knee after returning to training, including recurring swelling. See January 2020 Board Hearing Transcript at page 3. He also had testified to having recurring left knee pain since his service. Id. at 4. However, he also conceded that, although he had continual left knee pain (i.e., continuity of symptomatology), he did not seek treatment for it until 2016. Id. at 3. So again, as a means of determining whether the current left knee disability is the result of the injury in service, the Veteran underwent VA examinations in August 2016 and more recently in September 2020, the latter on remand. But the Board determined those VA examiners' opinions were inadequate since they did not consider the Veteran's lay statements regarding the continuity of his left knee symptoms since his separation from service, even if his initial treatment after service was not until in 2016. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Regarding those many intervening years between the conclusion of the Veteran's service and initial treatment after service, the Federal Circuit Court has recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .") Thus, when remanding this claim, the Board indicated that it was permissible for the VA examiner commenting to consider the absence of any objective indication of left knee symptoms or disability during those many ensuing years after service, until the initial post-service compliant in 2016, but also that this could not be the sole or exclusive reason for disassociating any current left knee disability from the Veteran's service, including from his left knee injury in basic training. The Board explained that it is permissible, however, to consider this as one of several factors in the ultimate determination of whether there is truth to this posited correlation. This prompted the Board to again remand this claim in May 2021. During the June 2021 VA examination the Veteran resultantly had following that additional remand of this claim, the VA examiner determined the Veteran's current left knee strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness (referring to the left knee strain in service). This VA examiner reasoned that, despite the Veteran's claims of onset in service with chronicity since service, the medical records do not support those claims. This VA examiner noted that the Veteran had just a single isolated episode of left knee strain on August 1, 1981 and it was noted to have resolved by August 8, 1981. That was only a week later. This VA examiner also noted that the Veteran served an additional four years (so until July 1985) without evidence of an ongoing condition. This VA examiner went on to explain that, had the condition been chronic, it is unlikely an individual could have endured four years of military service with the innate rigors of physical training without seeking care. This VA examiner also noted that there is no evidence of a knee condition proximate to service or until in or around 2016. This examiner thus concluded that, since it is unlikely an individual could have endured 30 plus years post service with a condition arising in service, the Veteran's current diagnosis of left knee strain is likely a new condition with an onset in or around 2016. Primarily based on this most recent unfavorable medical nexus opinion, but also acknowledging the other relevant lay and medical evidence in the file, the Board finds that the weight of the evidence shows the Veteran had left knee pain during his service immediately following his injury, but also that it was treated and rather quickly resolved not very long after (in fact, just a week later) and is not related to the currently diagnosed left knee strain. The Veteran is competent to state that he injured his left knee in service, and his STRs support an injury (strain) of this knee in August 1981, so during his initial service (basic training). But, while he is also competent to attest to continuity of symptoms since his service, so including since that strain, any contention of this is less than credible given the record as a whole conversely not tending to support this notion including according to the STRs for the remainder of his service (which was for some 4 more years) and the records for many years following conclusion of his service, until 2016. Competency and credibility are not the same thing. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The evidence shows he has self-reported having continuous symptoms since service but did not seek treatment for them until 2016, so not until some 31 years after conclusion of his service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy period following his service during which there was no clinical documentation of the claimed disorder). As the June 2021 VA examiner explained, it stands to reason the Veteran would have reported the prior left knee strain during his service had he in fact been experiencing the residual effects of it during the more than 30 years after conclusion of his service before his initial complaint of any symptom referable to this knee. Any clinical opinion based on this supposed continuity of symptoms since service consequently lacks probative value as it is based on his self-reported and less than credible history. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it is based). The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his current left knee disability, himself, including in terms of whether related or attributable to anything that occurred during his time in the military so including to the strain he sustained to this knee during his initial service. This determination is beyond his lay competence. See Kahana v. Shinseki, 24Vet. App.428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Thus, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is inapplicable, and this claim must be denied. See 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a low back disability, including lumbar spine degenerative joint and/or disc disease The Veteran also attributes his current low back disability to his service. But the Board concludes that, while the Veteran's private medical records indicate a current diagnosis of degenerative disc disease (DDD), and a September 1981 STR confirms that he injured his back while in the military, the preponderance of the evidence weighs against finding that his current low back disability began during his service, within a year of his discharge, or is otherwise related or attributable to his service including to that injury. The Veteran's private medical records indicate complaint of low back pain in February 2017, so some 32 years after conclusion of his service. He stated that the onset of his symptoms was remote and intermittent with unchanged course until just two years prior to that evaluation. A computed tomography (CT) scan revealed disc issues at L3-4 and L4-5 that were amenable to lumbar epidural steroid injection (LESI). The June 2021 VA examiner concluded that it is less likely than not the Veteran's current low back disability is due to his service so including to his injury in service. This VA examiner acknowledged the Veteran's STR contains a note of a contusion (so bruise) of his lumbar spine with associated abrasions owing to a fall involving a chair prank on September 17, 1981. But this VA examiner surmised this appears to have been an acute and self-limited injury as the follow-up on September 21, 1981 was unremarkable for pain or discomfort of any kind, with good range of motion and no pain on palpation or percussion, which is more provocative of symptoms and reflects a complete resolution. This VA examiner added that the Veteran served an additional four years (so until July 1985) without evidence of an ongoing back condition, and that this seems highly unlikely had the condition been chronic. This VA examiner acknowledged the Veteran's lay testimony but nonetheless determined that it is less likely than not the Veteran's condition was chronic in service or was present at separation since it is highly unlikely that a significant back condition would have gone unnoted or unreported. This VA examiner reasoned that, given the stress and rigors of military service, it is highly unlikely an individual could endure four years with a significant back condition. The June 2021 VA examiner then goes on to explain that degenerative spine disease is considered a natural aging process and was age-appropriate at the time of diagnosis. He also pointed out that greater than 50 percent of men 50 and older will have evidence of degenerative spine disease, the prevalence rising significantly per decade thereafter. According to this VA examiner, degenerative spine disease is due to normal wear and tear over a lifetime with natural disc desiccation and a contusion or strain/spasm would not cause degenerative spine disease 30 plus years later and the X-rays at the time of the events in service were negative for any bony injury to the spine. (This VA examiner cited Wheeless' Text as medical authority). This VA examiner concluded that, in the absence of evidence of bony trauma in 1981 (at the time of the Veteran's injury in service), there is no event in service predisposing him to the formation of naturally occurring degenerative spine disease and, therefore, it is less likely than not his degenerative spine disease had its nexus in service or is due to the events in service in 1981. This VA examiner stated that the medical records and the natural pathophysiology of the condition do not support the Veteran's lay testimony as to onset in service or continuity since service. Hence, after considering the evidence pertinent to this other claim, the Board also finds that it is insufficient to establish service connection for a low back disability. The reasons and bases for denying this other claim essentially are the same as those cited for denying the claim for left knee disability namely, recognition of injury in service but, ultimately, not the required correlation of the current disability with the injury in service and insufficient accounting for the many years following the injury in service (including for the remainder of service) when there was no indication of the disability. The medical evidence of record indicates the Veteran's current low back disability is less likely than not due to his service so including his injury in service. Moreover, the evidence indicates that his current diagnosis developed many years after his separation from service so well beyond the one-year presumptive period following conclusion of his service, and the etiology of the condition is the natural aging process and general wear and tear over time, as the June 2021 VA examiner explained. As such, service connection is not warranted. The June 2021 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran conversely believes that his current low back disability is related or attributable to his service, he is only competent to report symptoms and is not competent to ascribe his symptoms to a specific diagnosis or opine on the etiology of his current low back disability in relation to his military service, as this is a medically complex question given the type of condition being claimed. For these reasons and bases, the preponderance of the evidence is against this claim, so it must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.