Citation Nr: 21067169 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-37 185 DATE: November 3, 2021 ORDER Service connection for a back condition is denied. Service connection for a left knee condition is denied. REMANDED Service connection for residuals of a head injury. FINDINGS OF FACT 1. The Veteran's back condition is not related to service. 2. The Veteran's current left knee condition is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to March 1980. The case is on appeal from a May 2015 rating decision. In July 2019, the Veteran testified at a Board hearing. In a November 2019 decision, the Board reopened the previously denied claim of service connection for a left knee disability and remanded it for further development and adjudication. The Board also remanded the issues of service connection for a back and head injury disabilities. Additional evidence was received subsequent to the most recent supplemental statement of the case (SSOC) issued in November 2020. As the evidence is not pertinent to the claims decided herein, and only relates to the issue being remanded, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis 1. Service connection for a back condition. The Veteran contends that service connection for a back disability is warranted as his disability is the result of an in-service injury sustained during basic training. Specifically, the Veteran asserts that in March 1979, during an obstacle course training, he fell after hitting a pole and injured his back. See Board hearing transcript, p.3. The Board notes that the Veteran has current diagnoses for degenerative changes of the lumbar spine, osteoarthritis of the thoracic spine, and a history of osteoporosis of the thoracic spine. See January 2020 VA examination; see also VA treatment records dated from May 2014 to November 2019. As such, the current disability element of the claim is established. As to the in-service event element, service treatment records (STRs) reflect that the Veteran was sound at entrance. See November 1978 entrance medical exam. STRs show, however, that in March 1979 the Veteran hit his left knee during a confidence course. At that time, the health provider noted an isolated report of low back pain. No additional diagnosis was provided with respect to a back condition. A separation medical exam was conducted in March 1980. Although an examination report is not associated with his STRs, the Veteran was seen by health providers prior to his separation in March 1980. The corresponding progress notes do not show complaints or reports of a back injury/pain. Notwithstanding, in light of the March 1979 record noting a report of back pain associated with a fall during basic training, the Board finds that the in-service element of the claim has been also established. Now, the question for the Board is whether a nexus exists between the claimed current back disability and the in-service event shown in the Veteran's STRs. VA treatment records do not account for complaints, reports, or treatment sought for a back disability until February 2009. At that time, the Veteran reported that in January 2009, he reached down to pick a bag of groceries and his back "went out." The Veteran asserted that he was hardly able to stand after that and that the sudden pain almost brought him to his knees. While he indicated that "this has happened before," he clarified that prior episodes of low back pain must have been minor and self-limited. See February 3, 2009 VA progress notes. Thereafter, VA treatment records account for multiple episodes of additional back injuries accompanied by chronic back pain and treatment. See September 18, 2009 VA progress notes (low back pain after helping a friend moving a couch); August 16, 2010 VA progress notes (acute low back pain episode; sudden onset of a popping sensation in his low back, which occurred when he rolled over and twisted slightly in bed to retrieve his pillow; the VA provider noted that this is his fourth back injury in less than 18 months); January 28, 2011 (another episode of acute low back pain); and May 21, 2012 (in the past two weeks pain has been worse. He often has flares, thinks perhaps his lifting a car battery on a couple occasions, recently may have triggered his exacerbation). VA treatment records reflect that the Veteran has continued under aggressive pain management treatment ever since his first back injury reported in February 2009. See VA treatment records dated from May 2014 to November 2019. Private treatment records show that in March 2011, the Veteran reported to his private health provider that he has experienced low back pain since 1995 and that he did a lot of heavy lifting in the military. The provider noted that the Veteran is a poor historian in general and has trouble remembering details of his back history and care. Thereafter, in October 2011 the Veteran reported that his low back pain has been going on and off, but since 1982. The private provider noted that the Veteran's chronic low back pain is related to heavy work. See October 18, 2011 progress notes from Cook Hospital. The Veteran was afforded an initial VA examination in May 2015. The VA examiner made reference to STRs noting back pain in March 1979. The Veteran reported that while he lifted heavy generators and batteries, which in turn he believes pulled back muscles during service, he never sought medical care as stretching seemed to take the pain away. The Veteran self-reported that his back pain got progressively worse during the preceding 20 years (i.e. 1995). The examiner opined that the claimed back disability was less likely than not incurred in or caused by his military service. The examiner failed to provide a rationale for his opinion. Pursuant to the Board's November 2019 remand, a VA opinion from an orthopedic specialist was obtained in November 2020. Upon review of the Veteran's claims file, to include his STRs and medical history, the examiner, an orthopedic sports and surgery specialist, opined that the claimed disability was less likely than not incurred in or caused by the claimed in-service event. As rationale, the physician indicated that not only STRs do not reflect an injury to the lumbar spine during service, but that multiple treatment notes from physical therapy over the course of treatment for the Veteran's left knee injury do not reflect complaints of back pain. The examiner stated that the only post-service documentation of low back pain he could locate in the record was dated in 2009, when the Veteran reported a low back flare after lifting groceries. The examiner further noted that the medical evidence does not include documentation which supports a history of symptoms while in service or immediately following military service. Furthermore, the report indicates that the 2014 MRI results reveal chronic degenerative changes, which is consistent with normal aging of the lumbar spine. In sum, the examiner concluded that "although the Veteran currently has degenerative changes in his lumbar spine, it is less likely than not that these changes are the result of his brief military service [as] there is no indication of injury to his lumbar spine while in [] service." While in remand status, Social Security Administration (SSA) records were obtained and associated with the claims file in compliance with the Board's remand directives. The records reflect that the Veteran was awarded social security disability insurance (SSDI) benefits effective December 1991, however, for medical reasons not associated with a back disability. In fact, SSA records do not show complaints or reports of back pain associated with his SSDI claim. However, and with particular relevance here, the Board notes that the Veteran reported that his post-service occupations involved frequent bending and heavy lifting of generator sets of up to 100 lbs., and that the Veteran frequently carried on his own 50 plus lbs. as part of his duties between 1985 and 1991. The Board has considered the entire medical and lay evidence of record, including the May 2015 VA examination and opinion, and the November 2020 specialist's opinion as to the nexus element of the claim and finds that the Veteran's thoracolumbar spine disability did not have its onset during service and is not otherwise related to service. In reaching this conclusion, the Board has considered that the May 2015 VA examination report did not include a rationale in support of the opinion. However, the November 2020 VA opinion, supported by comprehensive rationale based on the Veteran's medical history, review of the entire medical records and by applying valid medical analysis, rectifies the noted flaw and when considered along with the findings of the November 2020 VA opinion, issued by an orthopedic specialist, the Board accords them great probative weight as to the nexus element of the claim. The examiner discussed the Veteran's contention and determined that his thoracolumbar condition is not related to his military service. The examiner's opinion that the Veteran's back disability had its onset a few years following the Veteran's release from active duty is well supported by the Veteran's own statements during his VA examination indicating that symptoms began to manifest in or around 1995, the VA treatment records dated from 2003 to 2019 showing no back problems up until February 2009, and the 2011 progress notes from Cook Hospital indicating that the Veteran's back pain is related to heavy work, a fact well supported by SSA records suggesting a repeated post-service occupational exposure to heavy lifting. Additionally, while the Veteran reported an onset approximately in 1995, the medical evidence of record reflects that it was in February 2009 that a complaint regarding back pain was first recorded after lifting a grocery bag, followed by subsequent injuries. The Board determines the November 2020 VA opinion is clear and unequivocal and based on the evidence of record, including the STRs, as well as the Veteran's self-reports. Moreover, the opinion is found to be highly persuasive as it is consistent with the evidence of record and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's contention that his current degenerative changes involving his back are related to service. However, a review of the evidence reflects that there is no competent medical evidence suggesting a link between the claimed disability and the Veteran's in-service event. Furthermore, the Veteran lacks the requisite expertise to render a medical opinion as to the etiology of his back disability. In support of the foregoing, the Veteran has consistently asserted that his current disability is related to pulled muscles in the back, whereas his medical diagnoses are related to musculoskeletal conditions. In conclusion, this is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, as the preponderance of the evidence is against the claim, the Veteran's back disability is not related to service. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a back disability is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. Service connection for a left knee condition. The Veteran contends that service connection for a left knee disability is warranted as it is, also, the result of the in-service injury sustained during basic training. The Veteran asserts his current left knee symptoms are the result of the March 1979 incident in which he hit his left knee with a pole during an obstacle course training. See Board hearing transcript, p.3. The Board notes that the Veteran has a diagnosis of left knee strain. See May 2015 VA examination. As such, the current disability element for the claims is established. As to the in-service event element, STRs reflect that the Veteran was sound at entrance. See November 1978 entrance medical exam. STRs show, however, that in March 1979 the Veteran hit his left knee during a confidence course. The assessment revealed a left knee strain with joint effusion in the suprapatellar bursa and pain medially. A diagnosis of acute subluxed patella of the left knee was noted. Thereafter, the Veteran again reported left knee pain in April 1979. The health provider made note of the March 1979 obstacle course incident and that the Veteran's left knee fluids were drained during basic training. The Veteran kept a cast for four weeks and complained of weakness and discomfort with palpation after its removal on April 20, 1979. However, on May 4, 1979 the Veteran reported that his left knee was "pain free without tenderness," and that he was able to lift 10 or more pounds without difficulty. A separation medical exam was conducted in March 1980. Although an examination report is not associated with his STRs, the Veteran was seen by health providers prior to his separation in March 1980. The associated progress notes do not show complaints or reports of left knee pain. Notwithstanding, in light of the March 1979 record noting an injury involving his left knee, the Board finds that the in-service element of the claim has been also established. The question for the Board is whether a nexus exists between the claimed left knee disability and the in-service event as shown in the Veteran's STRs. With respect to this claim, the Board notes that the Veteran first filed a claim for a left knee disability in December 1981. That is, approximately one year and 9 months following separation from service. The Veteran failed to report to his scheduled VA examination and the claim was denied. Despite the Veteran's left knee claim in 1981, the is no evidence of post-service treatment for a left knee disability. VA treatment records reflect no post-service complaints, reports, or treatment sought for a left knee disability or pain. In fact, the records reflect that multiple physical examinations conducted throughout the years have revealed either consistent brisk symmetric or intact knee reflexes without reports of pain. See December 29, 2006 progress notes; December 10, 2008 progress notes; February 3, 2009 progress notes; August 16, 2010 progress notes; May 21, 2012 progress notes (noting full knee extension on the left which, however, causes pain but to his back); August 11, 2014 (knee sensation intact to touch (SILT) with reflexes a quite brisk but symmetric throughout, however, subjectively decreased in all dermatomes below the knee on the left side); and April 2, 2018, and April 8, 2019 progress notes (knee reflexes intact and symmetric). Private treatment records do not account for treatment sought, reports or complaints of a left knee disability. The Veteran was afforded a VA knee conditions examination in May 2015. The Veteran made reference to the March 1979 obstacle course accident in which he sustained an injury to his left knee. He reported, however, that he began experiencing left knee snapping audibly for the past 15-20 years (i.e. 1995-2000). The Veteran denied seeking medical help or provider for his left knee as he controls the condition by exercising and walking. The Veteran also denied flare-ups and indicating that functional loss manifests by the snapping sound reported. The examination report revealed full/normal range of motion (ROM) for the left knee and that the Veteran was able to perform repetitive use without additional functional loss or ROM. X-rays performed during the examination revealed no fractures, dislocations, no significant degenerative changes, no joint fluid or calcifications. The examiner opined that the claimed disability is less likely than not incurred in or caused by the Veteran's military service as medical literature does not mention any long-term sequalae as a result of a left knee strain. The VA examiner failed to provide citations for the referred medical literature. In compliance with the November 2019 Board's remand, a VA opinion from an orthopedic specialist was obtained in November 2020. The physician indicated that upon review of the Veteran's medical history, STRs, statements, and VA treatment records, it is his opinion that the claimed disability was less likely as not incurred in or caused by the claimed in-service event. As rationale, the examiner indicated that although the Veteran experienced a blow to his knee in March 1979 as shown by his STRs, this injury was noted as healed with the Veteran acknowledging "no knee pain" as of May 4, 1979. The examiner stated that not only there is no further mention of left knee pain or injury following this time period in his treatment records, but there is neither evidence of long-term profiling following the injury, with the available documentation indicating a complete recovery following a brief period of physical therapy in service. The examiner further indicated that subsequent VA treatment notes from 2009 until the present are silent for ongoing treatment or pain in his left knee, to include an x-ray report from 2015 showing a completely normal left knee, without evidence of any long term sequelae from the acute injury in basic training. SSA records associated with the Veteran's claim file while in remand status do not show that the Veteran mentioned during his SSDI claim problems with his left knee, to include pain, strain, or any joint effusion of the left knee at that time. The Board has considered the entire medical and lay evidence of record, including the private medical opinions and finds that the Veteran's left knee condition did not have its onset during service and is not otherwise related to reported in-service event. The Board accords great probative weight to the November 2020 VA opinion with regard to the nexus element of the claim. The examiner discussed the Veteran's contention and determined that his left knee condition is not related to March 1979 in-service incident. The examiner's opinion that the Veteran's left knee disability appears to have been resolved since the Veteran's release from active duty is well supported by the VA treatment records dated from 2011 to 2021 which, besides showing some subjectively decreased reflexes in all dermatomes below the knee on the left side, they do not show reports or complaints of left knee problems or pain. This is also supported by the May 2015 x-rays showing that his left knee was completely normal without significant degenerative changes. The Board finds the April 2021 VA opinion is clear and unequivocal and based on the evidence of record, including the STRs, as well as the Veteran's self-reports. Moreover, the opinion is found to be highly persuasive as it is consistent with the evidence of record and supported by a rationale. See Nieves-Rodriguez, 22 Vet. App. at 295. The Board acknowledges the Veteran's contention that his left knee disability is related to the reported in-service event. However, a review of the evidence submitted reflects that there is no competent medical evidence suggesting a link between the claimed disability and the recorded in-service incident. See Waters v. Shinseki, 601 F. 3d 1274 (2010) (holding that merely making a claim is insufficient to indicate a nexus to service). Furthermore, the Veteran lacks the requisite expertise to render a medical opinion as to the etiology of his claimed left knee condition. This is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1372. In sum, the preponderance of the evidence is against the claim. The Board determines the Veteran's left knee disability is not related to in-service event. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for a left knee disability is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for residuals of a head injury. With respect to this claim, and contrary to the two issues decided above, the Board finds that further development must be conducted prior to adjudication of this issue on the merits. In the November 2019 remand, the Board specifically requested from the VA examiner to consider whether the Veteran's head/brain disorder had its onset or is otherwise related to his active military service, to include the Veteran's reported head injury in March 1979 while falling off during an obstacle course training. The Board also requested from the examiner to opine and comment on the Veteran's lay statements and his father reporting continued symptoms of headaches during and ever since service. See September 2016 lay statement from Mr. P.L.M. Pursuant to the Board's November 2019 remand, the Veteran was afforded an initial VA examination in connection with a head injury in January 2020. The examiner opined that while the Veteran reports that in March 1979, he fell and struck his left frontotemporal region on the poles and was dazed by the impact, and while the Veteran complained of headaches while on leave after the incident, there is no mention of a head injury in the Veteran's STRs. The examiner noted symptoms such as decreased memory and headaches which are more associated to light sensitivity. He further indicated that there is no record of evaluation or treatment of headache prior to 1986. There is consequently inadequate data to support a headache condition from 1980 forward and that even if there were records of headache from 1980 provided, this would be inadequate as a basis for traumatic brain injury (TBI) as a TBI diagnosis requires a documented head injury accompanied by an alteration of consciousness or loss of consciousness. There is no mention of a head injury in the records provided for review. Additionally, the veteran's left frontal oligodendroglioma was first excised from the left frontal lobe of the brain 6 years after separation from the military. In light of the foregoing, the examiner opined that the claimed residuals of a head injury are less likely than not incurred in or caused by the claimed in-service event. The Board finds the January 2020 opinion inadequate for various reasons. First, the examiner appears to have categorically relied on the absence of records to conclude that a head injury, to the extent that it could be considered a TBI, did not occur in service. The examiner indicated that there was no alteration of consciousness despite the Veteran's reports of feeling dazed after the incident. Additionally, the Board notes there are particular circumstances regarding the Veteran's behavior prior to and after the in-service incident that must be considered and addressed from a medical perspective. In that regard, service personnel records (SPRs) reflect that the Veteran received a recommendation for promotion in December 1979 for his satisfactory service and desire to excel as an Airman in the U.S. Air Force. See December 7, 1979 Airman Progress Report. Nonetheless, shortly thereafter the Veteran began showing conduct problems, to include the use of illegal substances. In a March 10, 1980 Evaluation Report, it is noted that the Veteran refused to participate in rehabilitative efforts because "he did not feel he could successfully stay off drugs." However, in a statement signed on the same date the Veteran stated that he will never use illegal drugs again. These statements appear contradicting, which in turn suggest a grade of someone's cognition problems. Second, the VA examiner stated that there are no symptoms noted in the Veteran's STRs, whereas in May 1979 the Veteran reported "a pounding" on the right side of his head. Moreover, the January 2020 examiner did not comply with the Board's directives as he failed to comment on the Veteran's and his father's statements as to the onset of headaches while the Veteran was on leave and following the alleged head injury. Also, while the VA examiner indicated that the Veteran's headaches are related to sensitivity to light, it is not clear upon which evidence the examiner relied on as VA treatment records and private treatment records seem to have historically associated the Veteran's headaches with his neurological/brain disability and/or residuals. The Board also notes that the area identified by the Veteran to which he sustained the head trauma was described by the VA examiner as his "left frontotemporal region." Of particular relevance here, the Board also notes that the Veteran's meningioma for which he was initially intervened in 1986 was in the left frontal area of his head. See May 2015 VA progress notes. Third, the examiner appears to have relied his opinion on incomplete or inaccurate information as there is an August 2014 VA neurology note in which a VA provider opined that the cause for numerous foci of susceptibility artifact in brain parenchyma are consistent with chronic hemorrhage could possibly stem from "a previous head trauma" or in more elderly patients, with amyloid angiopathy. In this regard, the Board notes that the Veteran was first intervened for his neurological/brain conditions in 1986, when he was only 28 years old. Lastly, in his TBI VA examination report, the examiner noted that the Veteran does not have complaints or impairment of memory, attention, concentration, or executive functions, normal judgement, appropriate social interaction, normal orientation, normal motor activity, normal visual spatial orientation, no subjective symptoms, no neurobehavioral effects, and normal consciousness, whereas the Veteran's VA Neurology attending physician since 2004, Dr. K.O.B, indicates that the Veteran's cognition and mobility are severely impaired by reasons of the Veteran's seizures associated to his brain disability. See August 2021 Medical Statement. For the reasons set forth above, the Board finds that a remand is warranted to obtain a VA opinion by a neurology specialist, to address these aspects of the claim and to comment on the nature and etiology of the Veteran's claimed disability and/or residuals. The matters are REMANDED for the following action: Forward the entire claims file, to include the lay statements in support of this claim and SSA records to a neurology specialist to comment on the nature and etiology of the claimed residuals of a head injury. If the reviewing physician deems it necessary, schedule the Veteran for an in-person VA examination. The examiner should first identify any neurological/brain disorders, to include any residuals. If no residuals are identified, it should be explained why this is so. The physician is then asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that any identified neurological/brain disorder or residuals had their onset during service, or are otherwise related to the Veteran's active military service. Special consideration should be given to the reasons for remand set forth above, to include: (1) the head area in which the Veteran alleges he received his head trauma in service compared to the head area in which the Veteran was first intervened in 1986 for a meningioma; (2) the Veteran's and his father's statements with respect to the headaches experienced while on leave and the May 1979 STRs notes accounting for reports of a "pounding on the right side of his head; and (3) the August 2014 VA neurology note in which a VA provider opined that the cause for numerous foci of susceptibility artifact in brain parenchyma are consistent with chronic hemorrhage which could possibly stem from "a previous head trauma." A complete rationale should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.