Citation Nr: 21066508 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-60 044 DATE: November 1, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability, to include lumbosacral strain, is denied. 2. Entitlement to service connection for a left knee disability, to include chondromalacia and degenerative changes, is denied. 3. Entitlement to service connection for a right knee disability, to include chondromalacia and degenerative changes, is denied. REMANDED 4. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to June 2, 2021 is remanded. 5. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's lumbar spine disability had its onset in service or is otherwise related to service, to include being manifested within one year of service discharge. 2. The preponderance of the evidence is against a finding that the Veteran's left knee disability had its onset in service or is otherwise related to service, to include being manifested within one year of service discharge. 3. The preponderance of the evidence is against a finding that the Veteran's right knee disability had its onset in service or is otherwise related to service, to include being manifested within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 2001 to November 2004. The Veteran testified at a virtual Board of Veteran's Appeals (Board) hearing before the undersigned Veterans Law Judge in May 2021. These matters are on appeal of a December 2015 rating decision that denied service connection for bilateral knee and lumbar spine disabilities and granted service connection for PTSD. In a July 2021 rating decision, the Veteran was granted a maximum rating of 100 percent for his PTSD as of June 2, 2021. Therefore, the relevant period relating to the Veteran's increased rating claim herein in prior to June 2, 2021. Service Connection In general, under the relevant laws and regulations, 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. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, which is also characterized as degenerative changes, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). As a preliminary matter, although the Veteran is competent to report his observed symptoms and to the circumstances of his service, his credibility has been undermined by the submission of a falsified record. Specifically, there are two, different Certificates of Release or Discharge from Active Duty, also known as DD Form 214 (DD-214), of record. The first was received by VA from the Veteran's military personnel file at the time of his discharge from active duty in November 2004. It showed that the Veteran served 3 years and 11 days from November 2001 to November 2004 with 12 weeks of training in a multiple launch rocket system course, and service in Operation Iraqi Freedom. The Veteran submitted a separate DD-214 in February 2016, which was altered to show that the Veteran's service ended in November 2005, instead of November 2004, despite the form still indicating a total of 3 years and 11 days of service. The form was also altered to show that the Veteran was in receipt of a Purple Heart, Bronze Star, and Meritorious Service Medal. Additionally, the form was altered to show that the Veteran completed five weeks of airborne school and six weeks of air assault school. A VA investigation in February 2016 indicated the DD-214 submitted by the Veteran to be fraudulent, which was confirmed by the receipt of the Veteran's DD-214 from his personnel record in April 2021, which was identical to the first form associated with the claims file in November 2004. The submission of an altered and fraudulent DD-214 represents a significant misrepresentation of material facts relevant to the Veteran's claims. Furthermore, the record contains several statements from the Veteran relating to his service and the claims herein that are inconsistent with the circumstances of his service. During a December 2015 VA examination, the Veteran reported that he served three, separate tours of duty overseas in Iraq. The examiner also noted that that the Veteran had reported being in the Army from 2001 to 2006 and being deployed to Afghanistan, Africa, South American, and Iraq as a paratrooper in a special operations unit, and that he received the Purple Heart. However, the Veteran's military personnel files confirm that the Veteran served one tour overseas, in Iraq only, from March to July of 2003, prior to his 2004 discharge. The examiner noted that the record does not indicate that the Veteran was a paratrooper or part of a special forces unit, or that the Veteran received the Purple Heart. Just two months after this VA examination, the Veteran submitted the fraudulent DD Form 214 discussed above, seeking to corroborate his false claims. Accordingly, the Veteran's lay statements are of little to no probative value and more weight is given to the objective findings of record and the relevant assessments of medical professionals included in the evidence. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection for each of the disabilities. The reasons follow. 1. Entitlement to service connection for a lumbar spine disability On examination in 2015, it was noted that the Veteran was diagnosed with a lumbosacral strain. As such, the Board finds that the Veteran has a current disability. The Veteran has alleged that physically demanding work performed while on active duty has led to his current lumbar spine disability. On VA examination in December 2015, the Veteran reported that his back problems began during service, stating that, "I hurt myself real bad overseas. We were in an accident over there traveling at night. The driver behind us slammed into our vehicle." He reported that he received treatment for his back while deployed and that he was taken from the scene of the motor vehicle accident to an emergency room via ambulance for his back pain. The Veteran was deployed to Iraq from March to July 2003. On a post-deployment health assessment in July 2003, the Veteran denied experiencing stiff or painful joints, back pain, or muscle aches during deployment. He reported that his health stayed the same or got better during deployment. He reported no health concerns and stated that he was not treated for any medical issues during deployment, contrary to his report of a motor vehicle accident during deployment. The Veteran's service treatment records show that he reported experiencing low back pain in January 2004. VA treatment records from the same month show that the Veteran was in a motor vehicle accident and was diagnosed with a back strain. The Board notes that this was not while the Veteran was deployed overseas. The Veteran was provided medication, but x-rays of the lumbar spine were negative. The Veteran reported back pain the following month on a physical examination, relating to the Veteran's motor vehicle accident. The record does not indicate that this was a chronic condition, as service treatment records do not show additional treatment relating to the Veteran's lumbosacral strain prior to his discharge from service in November 2004 and, thereafter, the Veteran was employed as an independent contractor, providing security detail overseas from 2005 to 2008. The Veteran reported experiencing back pain at the emergency room in mid-2005; however, the Veteran reported the onset of his symptoms occurred just 24 hours earlier. An October 2005 record indicates that the Veteran needed a full physical for his private security deployment to Iraq. At that time, the Veteran was found to have normal range of motion in the spine, and he was provided an assessment of normal male for private deployment. The Veteran received treatment prior to another private deployment to Iraq in January 2008. Examination of the Veteran's back contained no abnormalities, and the examiner stated that the Veteran had normal range of motion and straight leg raise testing. The Veteran reported some knee pain but reported no back symptoms. These findings were repeated during treatment on return from his private deployment in June 2008, and the Veteran reported no complaints or symptoms relating to any back problems, despite discussing multiple other medical issues. The Veteran was in another motor vehicle accident in December 2009, after which he reported back pain. VA treatment records in October 2013 indicate that the x-rays of the Veteran's lumbar spine were unremarkable. The Veteran reported to the emergency room with complaints of back pain in December 2013, stating that he believes he "lifted too heavy" the day prior. Post-service records consistently document the Veteran to maintain an intensive exercise and heavy lifting regimen. The Veteran underwent a VA examination of his spine in December 2015. The Veteran reported hurting his back overseas in a motor vehicle accident, which is not supported by the record. The examiner found it less likely than not that the Veteran's lumbar spine disability was caused by or the result of the Veteran's service. The examiner noted that the Veteran was seen for acute back pain in service, but that there is no evidence of a chronic back condition in service or the year following service. The examiner cited the Veteran's reports of returning to Iraq, as well as deploying to Afghanistan several times for civilian occupation after his discharge from the military. The examiner stated that this would have been difficult, if even possible, with a chronic back condition, and that the back condition is most likely secondary to post-military occupations and weightlifting. The Board finds this opinion to be probative, as it was it was provided by a medical professional who personally examined the Veteran, reviewed the relevant evidence of record, and provided a reasoned rationale for her opinion, which was supported by the longitudinal evidence of record. The preponderance of the evidence is against finding a causal relationship between the present lumbar spine disability and the back injury incurred during service. This is supported by the unremarkable diagnostic imaging of the Veteran's spine in both 2004 and 2013, which shows no chronic disability stemming from service. This is also evidence against an award of presumptive service connection on the basis of a chronic disease, as it shows that arthritic/degenerative changes were not present even nine years after the Veteran's discharge from active duty. Additionally, after service, the Veteran was able to provide private security on multiple civilian deployments overseas and maintain a heavy weightlifting regimen, which, as stated by the VA examiner, would be difficult, if not impossible with a chronic back condition. The Veteran has sought treatment for back pain on multiple occasions since service, relating to both motor vehicle accidents and weightlifting injuries, which provides evidence of intercurrent causes for the Veteran's current condition. For all the reasons discussed above, the preponderance of the evidence is against an award of service connection for a lumbar spine disability. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. 3. Entitlement to service connection for bilateral knee disabilities The Veteran complained of right knee pain in service and was diagnosed with early degenerative changes in his knees on examination in 2021. However, the preponderance of the evidence is against finding a causal relationship between the Veteran's present knee disabilities and the Veteran's active duty service. In a May 2019 statement, the Veteran reported that he twisted his knee during training at Fort Still in 2001. He also stated that he injured his knee performing PLF drills at Fort Bragg after his 2003 deployment. The Veteran did not specify to which knee these injuries occurred. He has also reported that the physically demanding work he performed throughout his service impacted his knees. He reported that he was getting shots in both knees as treatment from medics and his unit PA in 2002, but recurrent injections during service are not supported by the Veteran's service treatment records. The Veteran's service treatment records show that he reported pain in his right knee in January 2003. A separate treatment record, with no identifiable date, shows that the Veteran reported that he felt a "pop" in his right knee while running during physical training. In a post-deployment health assessment from July 2003, the Veteran denied swollen, stiff, or painful joints and muscle aches. He reported no concerns about his health. During treatment for his January 2004 motor vehicle accident, the Veteran reported no knee symptoms. The following month, he denied any knee problems, joint instability, and arthritis, and he received a normal clinical evaluation of the lower extremities. Following service discharge, the Veteran reported chronic right knee pain for the past three years in 2005 and he was noted to have knee arthralgia thereafter, including in the left knee. However, no imaging was associated with this assessment at the time, and it seems to have been based, in part, on the Veteran reporting a history of ACL tear while in the military, which is not supported by the Veteran's personnel or service treatment records. During this period, the Veteran was taking recurrent trips overseas working as a private security contractor. Additionally, during treatment in May 2009, the Veteran stated that he "messed up my knees jumping out of planes in Iraq, Syria and [A]fghanistan." As noted, the Veteran's service records demonstrates that the Veteran served only one tour overseas in Iraq and did not serve in Syria or Afghanistan. Additionally, the record does not support his separate claims that he was a paratrooper during his active duty service. Treatment records in December 2011 show that the Veteran reported that x-rays of his knees were normal. X-rays of the Veteran's knees in October 2013 were unremarkable. Thereafter, the Veteran requested further testing of his knees. A July 2014 MRI of his bilateral knees was also described as unremarkable. The Veteran underwent a VA examination of the bilateral knee in December 2015 and was assessed with chondromalacia patella bilaterally. The examiner noted numerous discrepancies in the Veteran's record relating to his claims. The examiner provided opinions that it is less likely than not that the Veteran's bilateral knee disabilities are caused by or result from the Veteran's active duty service. In her rationale, the examiner stated that there is no evidence that the Veteran had a chronic knee condition during service. She stated that chondromalacia is a condition with a clear and specific etiology and diagnosis, and that a review of medical literature reveals no evidence of a link between environmental exposures and the development of orthopedic/musculoskeletal conditions. She stated that the Veteran's knee conditions are most likely secondary to post-military occupations and weightlifting. The Board finds these opinions to be probative, as they were provided by a medical professional who personally examined the Veteran, reviewed the relevant evidence of record, and provided a reasoned rationale for her opinions, supported by the longitudinal evidence of record. Records in 2016 reported the Veteran remained very active, lifting and working out regularly. A January 2021 MRI of the bilateral knees showed early degenerative changes with no meniscal or ligament abnormalities. The preponderance of the evidence is against finding a causal relationship between the present knee disabilities and his active duty service. This is supported by the unremarkable diagnostic imaging of the Veteran's knees in 2011, 2013, and 2014, which show no chronic disease stemming from service. The Veteran was only recently assessed with early degenerative changes in his knees. These findings constitute evidence against an award of presumptive service connection on the basis of a chronic disease, as it shows that arthritic/degenerative changes were not manifested to a compensable degree within one year following the Veteran's discharge from active duty. Service treatment records do not document complaints or injuries relating to the Veteran's left knee during service. Despite the Veteran's reports of right knee pain in service, he was not diagnosed with a knee disability. Additionally, after service, the Veteran was able to provide private security on multiple civilian deployments overseas and maintain a heavy weightlifting regimen, activities which do not support the presence of a chronic bilateral knee disability. The Veteran's post-service activities, including overseas deployments as a private contractor and his weightlifting regimen serve as intercurrent events that are more likely responsible for the Veteran's current disabilities. For all the reasons discussed above, the preponderance of the evidence is against an award of service connection for bilateral knee disabilities. As the preponderance of the evidence is against the claims for service connection, the benefit of the doubt doctrine is not for application, and the Veteran's claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Increased rating for PTSD prior to June 2, 2021 5. Entitlement to TDIU At his May 2021 hearing, the Veteran reported that he had begun receiving private treatment for PTSD. The record was left open for 60 days thereafter to allow the Veteran to submit these records; however, at the present time, they have not been added to the claims file. The Board finds that an attempt to obtain these records should be made, as they are relevant to the Veteran's increased rating claim. As the matter of TDIU is inextricably intertwined with the Veteran's increased rating claim for PTSD, the TDIU claim also requires remand. The matters are REMANDED for the following action: Request that the Veteran identify any outstanding private medical records relevant to treatment for PTSD. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.