Citation Nr: 21067789 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-09 846 DATE: November 5, 2021 ORDER Entitlement to service connection for a left knee disability, to include degenerative joint disease (DJD), to include as secondary to the service-connected left ankle disability, is denied. Entitlement to service connection for a low back disability, to include lumbar degenerative disc disease (DDD), to include as secondary to the service-connected left ankle disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's left knee disability had an onset in service, manifested to a compensable degree within one year of service discharge, is secondary to a service-connected disability, or is otherwise related to service. 2. The preponderance of the evidence is against finding that the Veteran's low back disability had an onset in service, manifested to a compensable degree within one year of service discharge, is secondary to a service-connected disability, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, to include DJD, to include as secondary to service-connected left ankle disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a low back disability, to include lumbar DDD, to include as secondary to service-connected left ankle disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to October 1979. This appeal is before the Board of Veterans' Appeals (Board) from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2012. In June 2014, the Board remanded this case for further evidentiary development. In August 2014, the Veteran underwent a VA examination. In October 2014, the RO granted service connection for the Veteran's left ankle disability and issued a supplemental statement of the case for the remaining lower back and left knee disabilities. In February 2015, the Board remanded this case for further development. The 2015 remand included directives for the examiner to opine on direct and secondary service connection for the Veteran's claimed left knee and lower back disabilities. Shortly after the February 2015 remand, the Veteran passed away. In April 2020, the RO granted the Appellant's substitution request. In September 2020, the Board remanded this case for new VA opinions, which were received in March 2021. In April 2021, the Board remanded this case again for addendum opinions. The addendum opinions were produced in June 2021 and added to the Veteran's file in July 2021. In August 2021, the Board remanded this case for new opinions regarding secondary service connection. The opinions were produced September 2021. This case is now before the Board. The Board notes that this claims file includes a waiver letter from the Appellant's representative, dated in September 2021, indicating a request for the Board to proceed with the adjudication of the appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38C.F.R. §§3.303, 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for a left knee disability, to include DJD, to include as secondary to service-connected left ankle disability The Appellant contends that the Veteran was entitled to service connection for a left knee disability due to his active service. Alternatively, the Appellant contends that the Veteran's left knee disability was proximately due to or aggravated by the Veteran's service-connected left ankle disability. The Veteran's service treatment records are silent for a left knee injury. On the Veteran's February 1977 entrance examination, no abnormal findings were present other than a tattoo. The Veteran's records reflect a Report of Injury from July 1977, where the Veteran was involved in a motor vehicle accident and had trauma to the legs and ankles. The Veteran was treated for abrasions and had a left ankle injury. The Veteran's records reflect tenderness of one third of the lower left leg with trauma. The Veteran's wound was washed and bandaged. The medical record shows the x-ray was within normal limits. The Veteran was noted as "returned to duty." On the October 1979 discharge medical examination, the only abnormal finding was the Veteran's left ankle. The Veteran's post-service treatment records reveal that the Veteran had complaints of left knee pain in January 2003. In August 2004, the Veteran reported to a VA facility with left knee pain. The Veteran stated that he had pain since being in the military when the knee was caught between two chains. On the August 2009 Notice of Disagreement, the Veteran described a chain locker incident from July 1977. He stated that he did not received medical care for the injury. The Veteran also described a motorcycle accident in September 1979. He was treated for superficial wounds and no x-rays were taken. The Veteran testified at a July 2012 hearing regarding events during his time on active duty. The Veteran stated that he was involved in a July 1977 anchor chain accident. The Veteran testified that an anchor chain piled up on his ankle and it popped his ankle and his knee. The Veteran also testified that at some point after service, he was told he needed arthroscopic surgery but was unable due to payment issues. The Veteran also testified that he was a painter after he left active duty. The Veteran was afforded a record review and opinion in March 2021. The examiner reviewed the record and opined it was less likely than not that the Veteran's left knee disability was incurred in or caused by the in-service injury, event, or illness. The examiner acknowledged the Veteran's contentions of a left knee injury while on active duty and his contention that the Veteran was told he needed arthroscopic surgery. However, the examiner noted that the Veteran's separation physical was inconsistent with his report of continuous left knee pain. The examiner noted that the Veteran sought a consult at the VA for left knee pain and was noted as having degenerative joint disease, but there were no findings to suggest the Veteran sustained previous left knee trauma. The examiner stated the Veteran's left knee degenerative joint disease is more consistent with gradual degenerative changes over time, rather than trauma during service. The Veteran was afforded a VA record review and opinion in September 2021 pursuant to the April 2021 Board remand regarding secondary service connection. The examiner ultimately opined that the Veteran's left knee condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner stated that a condition of one joint does not cause a condition of another joint. The examiner went on to state that gait accommodation for the left ankle would not cause or aggravate the Veteran's DJD and that DJD does not spread from one joint to another. The examiner thus also opined that it was less likely than not that the Veteran's knee condition was aggravated beyond its natural course due to any cause, including the Veteran's left ankle condition. The Board notes the Veteran's lay testimony in the record that his left knee disability is due to his service and/or his service-connected left ankle. While the Veteran was, and the Appellant is, competent to report having experienced symptoms since service, neither individual has had the training or credentials to provide a competent opinion as to a diagnosis or etiology in this case. See Jandreau, 492 F.3d at 1377. The Board concludes that, while the Veteran had a disability of the left knee, the preponderance of the evidence weighs against finding that this left knee disability began during service or is otherwise related to an in-service injury, event, or disease. Additionally, the preponderance of the evidence weighs against finding that the Veteran's left knee disability was proximately due to, or aggravated by, the service-connected left ankle disability. Lastly, the medical evidence does not show he was diagnosed with left knee condition by October 1980, one year from separation from active duty. The first evidence of a knee condition of record was decades after service. The record is silent for a positive nexus opinion supporting the claim. Therefore, the claim of entitlement to service connection for a left knee disability must be denied. In reaching the above determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107. 2. Entitlement to service connection for a low back, to include lumbar DDD, to include as secondary to service-connected left ankle disability The Appellant contends that the Veteran was entitled to service connection for a low back disability due to his active service. Alternatively, the Appellant contends that the Veteran's low back disability was proximately due to or aggravated by the service-connected left ankle. The Veteran's service treatment records are silent regarding a back injury. As referenced above, the Veteran was involved in a motor vehicle accident, motorcycle accident, and anchor chain accident. However, there is no evidence of treatment for a back injury during active service. Additionally, the Veteran did not report any back issues on his separation examination. The Veteran's post service treatment records show the Veteran first reported to a VA medical facility for lower back pain in November 2002. The Veteran was noted to have lumbago. The Veteran reported that his lower back pain began two months prior to November 2002. The Veteran as instructed to ice his back for 20 minutes and follow up with heat for 20 minutes. The Veteran was told to follow up after 6 months or sooner if needed. In January 2003, the Veteran reported to a VA medical facility with sharp pain/spasm in his back with an achy knee. X-rays from January 2003 show that the Veteran had a diagnosis of arthritis and mild lumbar spondylosis primarily affecting the L5-S1 interverbal disc level. He was noted as taking Percocet and muscle relaxers. In a physical therapy consult note in March 2003, the Veteran reported the onset of his back pain a year prior. The Veteran reported that he just woke up with the back pain one morning. On the March 2010 Form 9, the Veteran again described the chain locker incident from July 1977 and the motorcycle accident that injured his back. The Veteran stated that his wounds were cleaned, but no x-rays or other tests were carried out. The Veteran also stated that he had back pain since the motorcycle accident. The Veteran testified at a July 2012 hearing regarding events during his time on active duty. The Veteran testified that his back injury was due to the car accident. The Veteran was afforded a VA medical opinion that was produced in March 2021. The examiner reviewed the claims file and opined that is less likely than not that the Veteran's low back disability is related to his active military service. The examiner acknowledged the Veteran's report of a motorcycle accident in service. However, the examiner noted that a review of the Veteran's treatment records did not indicate a severe back injury was sustained due to a motorcycle accident in service. The examiner referenced the Veteran's complaints of back pain at a VA medical facility in November 2002 and pointed out the Veteran did not report a motorcycle accident. The examiner also stated that the radiographs and an MRI of the Veteran's lower back from 2002 did not reveal any evidence of trauma that could be related the Veteran's motorcycle accident. The examiner opined that the lumbar spine imaging was more consistent with degenerative changes that occur over time from wear and tear from everyday activities. The Veteran was afforded a VA opinion in September 2021 pursuant to the April 2021 Board remand regarding secondary service connection. The examiner indicated that the record was reviewed. The examiner opined that it was less likely than not that the claimed condition was proximately due to or the result of the Veteran's service-connected condition. The examiner stated that a condition of one joint does not cause a condition of another joint or joint system, such as the spine. The examiner stated that this has been established by medical knowledge and practice. Gait accomodation for the left ankle did not and would not cause the Veteran's degenerative spine disease, nor would it aggravate it beyond the natural course. The examiner found that the Veteran's degenerative spine disease was age appropriate at the time of diagnosis and likely due to normal wear and tear over a lifetime. The examiner reiterated his opinion when he stated that it was less likely than not that the Veteran's degenerative spine disease was due to or incurred by the Veteran's left ankle condition and that it was less likely than not that the Veteran's degenerative spine disease was aggravated beyond its natural course due to any cause, including the Veteran's left ankle condition. The Board notes the Veteran's lay testimony in the record that his lower back disability is due to his service and/or his service-connected left ankle. While the Veteran was, and the Appellant is, competent to report having experienced symptoms since service, neither had the training or credentials to provide a competent opinion as to a diagnosis or etiology in this case. See Jandreau, 492 F.3d at 1377. The Board concludes that, while the Veteran had a lower back disability, the preponderance of the evidence weighs against finding that the Veteran's lower back disability began during service or is otherwise related to an in-service injury, event, or disease. Additionally, the medical evidence does not show he was diagnosed with lower back condition by October 1980, one year from separation from active duty. The first evidence of an ankle condition of record was decades after service. When the Veteran had complaints in November 2002, the Veteran stated the pain stated two months prior. Lastly, the preponderance of the evidence weighs against finding that the Veteran's lower back disability was proximately due to, or aggravated by, service-connected left ankle disability. The record does not contain any medical opinions supporting the claim. Therefore, the claim of entitlement to service connection for a lower back disability must be denied. In reaching the above determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.