Citation Nr: 21067826 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-59 298 DATE: November 5, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease (DDD) is denied. Entitlement to service connection for right knee degenerative joint disease (DJD) is denied. REMANDED Entitlement to service connection for lumbar spine degenerative disc disease (DDD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that cervical spine DDD began during active service, or is otherwise related to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that right knee DJD began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine DDD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for service connection for right knee DJD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to April 1980. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303(a). To establish a right to compensation for a present disability, a veteran 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 (Fed. Cir. 2004). Entitlement to service connection for cervical spine DDD The Veteran contends that his cervical spine condition is due to his active service. Specifically, the Veteran indicates that "even though I was involved in a motorcycle accident prior to service. It's my contentions, active military service; i.e. running, marching, jumping, prolong walking and military exercising has aggravated my back and neck condition. Additionally, my doctors has agreed with this fact." Service treatment records (STRs) indicate an April 1985 complaint of right lower neck pain that persistent for two days. A private September 2010 x-ray showed cervical degenerative disc disease. In March 2012, the Veteran attended a VA Cervical Spine conditions examination. The examiner diagnosed mild cervical strain and DDD. The Veteran stated that he developed neck pain in 1985 as the result of doing sit-ups and denied any acute injuries to his neck. The examiner opined that it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: It is less likely than not that this current neck condition is secondary to his 1985 incident. The physical examinations on 2/6/1988 & 2/27/1990 documented no neck problems. In addition, a review of the current reliable scientific medical literature yielded no evidence that a single simple strain injury of any portion of the spine leads to the development subsequent degenerative disease of the spine. It is also significant to note that the veterans employment history since his military service has consisted primarily of occupations that require a lot of carrying, lifting & moving of heavy objects. Such activities place a great deal of on the entire spine. It is well documented in the current orthopedic literature that such long term stress on the spine is one of the leading causes of degenerative spinal disease. In January 2021, the Veteran's representative provided a private medical opinion. Dr. F.A.G. stated: [The Veteran] has a current condition of advanced degenerative disc disease of the cervical spine with multiple level degenerative changes as well as loss of normal cervical lordosis at the C5-C6 level. A reversal of cervical lordosis at the C5-C6 level has resulted in central spinal stenosis without myelomalacia but with an hourglass change at the cervical spine levels. Uncinate processes have developed arthrosis which contribute to foraminal stenosis greatest at the C5-C6 level. There is a history of a motorcycle accident in 1977. The veteran has stated that he has had neck pain since that accident. During his military career there is documentation of repetitive neck pain. It is more likely than not that his active duty military activities as well has his basic training have contributed to a progressive degenerative disk disease at the cervical spine level with marked-anatomical-changes. While the motorcycle accident is likely to have contributed to progressive cervical changes the veteran has stated that he was in good health at induction to military service and his entrance examination does not disclose any conditions or impairments. A cervical spine condition with advanced changes is more likely than not substantially contributed to and aggravated by military service with 80% impairment. The remaining evidence of record indicates continued complaints and treatment for a cervical spine condition but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. There is no diagnosis of a cervical disability in the records between the end of the Veteran's active service in 1980 and the September 2010 x-ray indicating cervical DDD, more than 30 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, while the Board notes the multiple treatment records indicating said history, none speak to the onset of a cervical disability. In addition, the Board notes the private medical opinion provided by the Veteran's representative. However, it has been afforded less probative value. Indeed, the examiner failed to indicate whether or not he had reviewed the Veteran's entire claims file and he did not provide a sufficient rationale in support of the opinion stated. The Board recognizes the Veteran's representative contention that the VA examination was incomplete and facially insufficient because no evaluation on whether periods of active service had aggravated previous injuries was made. However, the Board brings attention to the Veteran himself specifically stating [E]ven though I was involved in a motorcycle accident prior to service. It's my contentions, active military service; i.e. running, marching, jumping, prolong walking and military exercising has aggravated my back and neck condition. Additionally, my doctors has agreed with this fact. While the Veteran believes his cervical disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no showing of an in-service injury or disease to which the current cervical diagnosis may relate, and no basis shown for an award of benefits for chronic disability seen in the first post service year or based on continuity of symptoms. These facts provide no basis for an award of service connection for a cervical disability. In conclusion, the weight of the evidence is against the claim for service connection for a cervical disability. Entitlement to service connection for right knee DJD The Veteran contends that his right knee DJD is the result of his active service. STRs indicated a right knee injury after slipping in September 1987. X-ray was normal, and the assessment was bruise. The Veteran was given a seven-day physical profile for the bruise. In an October 2009 treatment record, the Veteran complained of bilateral knee pain for the past 5-6 years, and the diagnosis was degenerative joint disease of both knees. In March 2012, the Veteran attended a VA Knee Conditions examination. The examiner diagnosed right knee bruise and right knee DJD. The Veteran stated that he injured his right knee in 1987 while on active duty when he twisted his need and stated he has had knee pain since then. The examiner opined that it was less likely than not due to or the result of his active service. The rationale provided was: It is less likely than not that his current right knee condition is secondary to his 1987 injury. The physical examination done on 2/27/1990 documented no knee problems. In addition, a review of the current reliable scientific medical literature yielded no evidence that a single simple contusion injury of a joint leads to the development of subsequent degenerative joint disease of the joint. It is also significant to note that the veterans's employment history since his military service has consisted primarily of occupations that require a lot of standing and a lot of carrying, lifting & moving of heavy objects. Such activities place a great deal of stress on the large weight bearing like the knees. It is well documented in multiple sources in the current orthopedic literature that such long-term stress on the joint is the leading cause of degenerative disease. In January 2021, the Veteran's representative provided a private medical opinion. Dr. F.A.G. stated: [The Veteran] has also developed degenerative osteoarthritis at both knees. While his motorcycle accident does not include any documented knee changes and there is a history of an injury to the right knee in 1987 with x-rays normal and a diagnosis of a bruise at that time. He also was given a profile in 1987 with no running no marching. It is more likely than not that a right knee degenerative osteoarthritis has a causal nexus to military service with a 20% impairment. A condition of lumbosacral degenerative disc disease was initiated in motorcycle accident of 1977 but [The Veteran] more likely than not experienced an aggravation of preexisting condition through his military service activities and documented injury. A 40% impairment of the right knee is present. Total impairment is equal to 90%. The cumulative effect of the cervical spine the lumbosacral spine and the knee condition render him unable to seek and maintain gainful employment. The remaining evidence of record indicates continued complaints and treatment for a right knee condition but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. There is no diagnosis of a right knee disability in the records between the end of the Veteran's active service in 1980 and the October 2009 treatment record indicating bilateral knee DJD, more than 30 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, while the Board notes the multiple treatment records indicating said history, none speak to the onset of a right knee disability. In addition, the Board notes the private medical opinion provided by the Veteran's representative. However, it has been afforded less probative value. Indeed, the examiner failed to indicate whether or not he had reviewed the Veteran's entire claims file and he did not provide a sufficient rationale in support of the opinion stated. The Board recognizes the Veteran's representative contention that the VA examination was incomplete and facially insufficient because no evaluation on whether periods of active service had aggravated previous injuries was made. However, the Board brings attention to the Veteran himself specifically stating: [E]ven though I was involved in a motorcycle accident prior to service. It's my contentions, active military service; i.e. running, marching, jumping, prolong walking and military exercising has aggravated my back and neck condition. Additionally, my doctors has agreed with this fact. While the Veteran believes his right knee disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no showing of an in-service injury or disease to which the current right knee diagnosis may relate, and no basis shown for an award of benefits for chronic disability seen in the first post service year or based on continuity of symptoms. These facts provide no basis for an award of service connection for a right knee disability. In conclusion, the weight of the evidence is against the claim for service connection for a right knee disability. REMANDED Entitlement to service connection for lumbar spine DDD is remanded. REASONS FOR REMAND Entitlement to service connection for lumbar spine DDD is remanded. The Veteran contends that his lumbar spine condition is the result of his active duty. STRs indicate that he reported a back injury after a motorcycle accident during the entrance examination in September 1979. This along with the October 2008 assessment of acute right lumbosacral strain with spasms are sufficient to trigger the duty on the part of VA to provide an examination as to this claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Veteran should be afforded a VA examination so as to determine the nature and etiology of his lumbar condition. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of his lumbar condition. The record, to include a copy of this Remand, must be made available to the examiner for review and the examiner must state in the examination report that the record has been reviewed. All indicated tests should be performed. The examiner should identify all lumbar spine disorders found to be present. With respect to each disorder diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not related to the Veteran's military service. A complete rationale should be given for all opinions and conclusions expressed. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.