Citation Nr: 21069212 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-19 524 DATE: November 17, 2021 ORDER Entitlement to service connection for right knee pain including as due to back, leg and left knee is denied. Entitlement to service connection for left knee pain including as due to back and leg is denied. Entitlement to service connection for neck pain including as due to back pain, leg pain, and both knees is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the right pain is related to an in-service injury or disease or was either caused or aggravated by any of his service-connected disabilities. 2. The preponderance of the evidence is against finding that the left knee pain is related to an in-service injury or disease or was either caused or aggravated by any of his service-connected disabilities. 3. The preponderance of the evidence is against finding that the neck pain is related to an in-service injury or disease or was either caused or aggravated by any of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for entitlement to service connection for left knee pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for entitlement to service connection for a neck pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to May 1991. The Veteran testified before the undersigned Veterans Law Judge during the December 2018 Board of Veterans Appeals (Board) hearing. A transcript of the hearing is associated with the claims file. This matter was previously remanded in January 2019 and February 2021 for additional development. It now returns for further appellate review. Service Connection 1. Right Knee Pain and Left Knee Pain Direct Service Connection The Veteran contends that he is entitled to service connection for his right and left knee pain as a result of an injury when he fell from a tall stool and landed on his back while working in the guard tower during active service. See June 2013 VA Form 21-4138 (Veteran's Lay Statement). Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Relevant Facts and Analysis Presumptive Service Connection The Board considered whether the Veteran's left and right knee arthritis was entitled to presumptive service connection. Arthritis will be presumed to be incurred in service if it manifested to a compensable degree (meaning 10 percent disabling) within one year after discharge from service. See 38 U.S.C. § 1110, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). However, the record does not show that the Veteran was diagnosed with left and right (bilateral) knee arthritis within one year of separation from service in May 1991. In fact, the Veteran was not diagnosed with degenerative arthritis until October 2019 (see October 2019 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ)), which is approximately 28 years after active service. Therefore, the Veteran did not establish that his bilateral arthritis was a chronic condition for the purpose of establishing presumptive service connection. Direct Service Connection The evidence of record confirms the Veteran has a current diagnosis for a right knee meniscal tear and bilateral knee degenerative arthritis. See October 2019 VA Knee and Lower Leg Conditions DBQ. Thus, the first element of service connection, a current disability, has been met. Turning to the second element of service connection, an in-service event or injury, the Veteran has provided several lay statements, testimony, and buddy lay statements which all attest that the Veteran sustained an injury when he fell from a tall stool and landed on his back while working in the guard tower during active service. See June 2013 VA Form 21-4138 (Veteran's Lay Statement). See Buddy/Lay Statement from Ms. R.W. (asserting that she served with the Veteran as military police, and that she witnessed the Veteran after he "had fallen out of the stool that had broken when he sat in it); Buddy/Lay Statement from Captain (RET) T.W.H (stating "I witnessed [Veteran] fall backward from a tall stool to the floor onto his back."). The Veteran's service treatment records (STRs) also confirm that he complained of right leg and back pain. The Board finds that these statements are competent and credible for establishing the Veteran's in-service injury. Accordingly, the second element of service connection has been met. The question for the Board is whether there is a nexus between the Veteran's current bilateral knee disability and his active service. The Board finds that this essential element has not been established based on the evidence of record. As an initial matter, it is important to note that in February 2021, the Board found that the VA examiners from October 2019, November 2019, and July 2020 did not address the Veteran's lay statements and were therefore inadequate opinions for direct service connection. See February 2021 Board Remand. As such, the Board will not discuss these medical opinions. Pursuant to the February 2021 Board remand, VA obtained a medical opinion for the Veteran's bilateral knee disabilities in August 2021. Based on a review of the relevant medical records including prior VA examinations, the June 2021 VA examiner determined that the Veteran's bilateral knee disabilities was less likely than not incurred in service or caused by the Veteran's in-service injury. See June 2021 VA Medical Opinion DBQ. The examiner acknowledged the Veteran's lay assertion of falling off a stool during service, but noted that the Veteran's service treatment records (STRs) did not document any chronic knee problems nor were there any findings of chronic knee symptoms. Id. Upon review of the record, the examiner asserted that it would not be presumptive that there would be some indication within the Veteran's STRs of a recurrent knee complaint following his injury from falling off the guard tower stool. He further found it was implausible that the Veteran sustained serious chronic injuries from the in-service fall with "no service record [] to substantiate [] current claims of chronic pain dating to the service [injury]." Id. The examiner concluded that there was a high probability that the Veteran's current knee disabilities were incurred in service and most likely due to overuse, age, morbid obesity, and post-service activities. Id. The Board finds that the June 2021 VA medical opinion is entitled to great probative weight, as the opinion was based on a review of the claims file and considered the Veteran's lay reports, the medical evidence, and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Notably, the Board is cognizant that the examiner's finding that there should be some notation in the STRs as to his bilateral knee as one basis to not find a nexus, must have a sufficient foundation. The Board finds that there was a sufficient foundation, where the examiner's opinion is logical where the Veteran reported chronic back and right leg problems as a result of his in-service injuries. For instance, in July 1990 and August 1990, the Veteran reported chronic right leg and low back pain. See i.e., July 1990 Orthopedic Consultation Sheet and August 1990 Physical Profile Serial Report in STR. Notably, in the March 1991 Report of Medical History completed at the time of his separation examination, the Veteran denied having symptoms of cramps in his legs, broken bones, arthritis, bone or joint deformity, and trick or locked knee. See March 1991 Report of Medical History in STR. However, there were no reports or complaints related to the Veteran's bilateral knees. Accordingly, the Board finds that the June 2021 VA medical opinion provided competent, credible, and probative evidence. The Board considered the Veteran's lay statement that he asserts that his current bilateral knee disabilities are related to service. However, while the Veteran may be competent to report having bilateral knee symptoms since service, he is not competent to determine the etiology of his bilateral knee disability, where the issue is medically complex, as it is here, and where it requires knowledge of interpretation of complicated diagnostic medical testing and development of orthopedic conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Alternatively, the nexus element can be established with evidence of continuity of symptomatology. However, the Board does not find that this was established. Importantly, the Board does not find that the Veteran's bilateral knee disability was noted in service. Considering the Veteran's lay statement that his current disability is related to service due to his symptoms over the years, the Board finds that June 2021 VA medical opinion is more probative. Based on the medical evidence of record, the June 2021 examiner concluded it was implausible that the Veteran sustained serious chronic injuries to his bilateral knees considering his STRs were silent for any knee complaints or symptoms. The examiner also found that it was highly likely that his bilateral knee problems, which did not appear for decades later, were incurred due to overuse, age, morbid obesity, and post-service activities. Notably, the earliest post-service treatment record for complaint of bilateral knee pain is from March 2013. See March 2013 Private Knee X-ray Report from Cross Timbers Orthopaedics. In a June 2013 initial consutation, the Veteran noted he had right knee pain which began approximately two months ago, which is consistent with the March 2013 X-ray Report as to the issue of onset. See June 2013 Cross Timbers Orthopaedics Office Visit. This evidence indicates that the Veteran's knee complaints occurred more than 22 years following service. The Board acknowledges the Veteran's testimony that he had bilateral knee symptoms during service and continued symptoms throughout the years during the October 2018 Board hearing. However, as noted above the earliest post-service evidence of symptoms for knee pain is from March 2013, which is more than 22 years after service. Furthermore, while the Board does not doubt the sincerity of the Veteran's current belief that his symptoms of knee pain has been present since his years in service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections, such as his March 1991 separation examination which shows he had normal lower extremities upon clinical examination and denied any tricked or locked knee, or bone or joint deformity. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." Notably, in June 2013 the Veteran reported during his initial consultation that his knee pain began a couple of months ago. See June 2013 Cross Timbers Orthopaedics Office Visit. Furthermore, in looking at the Veteran's in-service examinations, his STRs were silent for treatment of any knee pain or symptoms. The Board finds that this weighs against the Veteran's lay statement of continuous pain since an in-service injury. As such, the Veteran's lay statements regarding continuity of symptomology are outweighed by the medical evidence of record. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (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). Accordingly, the Board concludes that, while the Veteran has current diagnoses of bilateral knee arthritis and right knee meniscal tear, and evidence shows that he sustained an injury during active service when he fell from a tall stool and landed on his back while working in the guard tower, the preponderance of the evidence weighs against finding that the Veteran's bilateral knee disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. Accordingly, the Board concludes that the preponderance of the evidence is against the claim and entitlement to service connection for a bilateral knee disability must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. Given such, the benefit-of-the-doubt doctrine is not applicable. Secondary Service Connection Alternatively, the Veteran contends that his right and left knee pain were secondary to his service-connected back and leg disabilities. See June 2013 VA Form 21-526 EZ. Legal Criteria In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Relevant Facts and Analysis As noted above, the Veteran has a current diagnosis for right knee meniscal tear and bilateral knee degenerative arthritis. See October 2019 VA Knee and Lower Leg Conditions DBQ. Thus, the first element of secondary service connection, a current disability, has been met. The Veteran is service-connected for left and right (bilateral) leg radiculopathy. See July 2021 Rating Decision Codesheet. As such, he meets the second element of secondary service connection. The question for the Board is whether the Veteran's service-connected bilateral radiculopathy caused or aggravated his current bilateral knee disabilities. The June 2021 VA examiner found that the Veteran's bilateral knee arthritis was less likely than not caused by the Veteran's radiculopathy. See June 2021 VA Medical Opinion DBQ. The examiner noted that there was no objective evidence in the claim that indicates his bilateral knee arthritis is due to his back or back related radiculopathy. In concluding that the Veteran's knee disability was not the result of his radiculopathy, the examiner remarked the correlation between these disabilities were speculative and not objectively verified. Id. The June 2021 VA examiner also opined that the Veteran's bilateral knee disabilities were was less likely than not aggravated by the Veteran's radiculopathy because there as no objective evidence in the claims file to suggest aggravation of the Veteran's bilateral knees by his service-connected radiculopathy. See July 2021 VA Medical Opinion DBQ. The June 2021 medical opinion is consistent with the October 2019 VA examiner who stated that the Veteran's radiculopathy would not cause or aggravate knee arthritis and meniscal tear because these medical conditions were separate, and one would not aggravate the other. See October 2019 VA Medical Opinion DBQ. Thus, based on the foregoing, given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. at 300-301. Additionally, there are no private or VA medical records on file that provide any findings that conflict with the June 2021 VA negative etiology opinion. The Board notes that while the Veteran contends his bilateral knee disabilities, were caused by back pain, he is not service connected for a back disability. As such, the Veteran may not establish service connection for bilateral knee disabilities as secondary to back pain or disability. Finally, the Board acknowledges that the Veteran contends that his bilateral knee disabilities is related to the Veteran's service-connected radiculopathy; however, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. While lay persons are competent to provide opinions on some medical issues (see Kahana, 24 Vet. App. at 435 ), the Board finds the specific issue here (i.e., the etiology of bilateral knee arthritis and right knee meniscal tear) falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. Thus, the Veteran's lay statements, to the extent that they pertain to the potential etiology of his bilateral knee disability, are entitled to minimal probative weight. See Layno, 6 Vet. App. at 470. Thus, as the negative June 2021 VA opinion carries more probative weight, the preponderance of the evidence weighs against a finding that the Veteran's current bilateral knee disabilities are related to his service-connected radiculopathy. As such, secondary service connection is denied. 2. Neck pain The Veteran seeks service connection for neck pain to include as secondary to back pain, leg pain, and both knees. See June 2014 Notice of Disagreement (NOD). Relevant Facts and Analysis Direct Service connection The Veteran was diagnosed with cervical strain during the October 2019 VA examination. See October 2019 VA Neck (Cervical Spine) Conditions DBQ. Thus, the first element of service connection, a current disability, has been met. As discussed above, the Veteran has provided several competent and credible lay statements that he sustained an injury to his back and right leg when he fell off a stool and landed on his back while working in the guard tower. See i.e., October 2018 Hearing Transcript. Thus, based on the Veteran's competent and credible lay statements, the second element of service connection, an in-service injury, has been satisfied. Thus, the question for the Board is whether there is a nexus between the Veteran's current disability and his in-service injury. While the Veteran has a current disability and evidence of an in-service injury, unfortunately the weight of the evidence is against finding a nexus between the two. The June 2021 VA examiner opined that the Veteran's current neck disability was less likely than not related to his in-service injury from falling off a tall stool. See June 2021 VA Medical Opinion DBQ. To support his conclusion, the examiner noted that the Veteran's service records contained no documentation of a chronic neck problem in the service, or chronic neck symptoms. He further stated that the pain complaints in the Veteran's STRs were related to his back and right leg rather than his neck. The examiner also noted that it was not presumptive to assume that if the Veteran's injury from falling off the tall stool caused recurrent or chronic neck problems, such problems would be noted in his STRs. He also concluded that the Veteran's current neck condition was likely due to overuse, age, morbid obesity, and post-service activities. Id. The Board finds that the June 2021 VA medical opinion is entitled to great probative weight where the VA examiner provided the facts he considered in rendering his opinion including reviewing the claims file, and based his opinion on medical knowledge of the Veteran's claimed condition. The Board finds that the VA examiner reviewed the evidence of record and offered a medical opinion based on the medical evidence and considered the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. Additionally, the Board notes that the June 2021 VA medical opinion is consistent with the medical evidence of record which reflects the earliest treatment for neck disability of record was documented in 2005, which is nearly 14 years after service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may favor competent medical nexus evidence over lay statements offered by Veteran). Notably, the March 2005 private treatment record indicates the Veteran complained of neck pain following being rear-ended (i.e., involved in a motor vehicle accident). See March 2005 Private Treatment Record from Stephensville Medical- Surgical clinic. This evidence indicates that the Veteran's current neck pain was incurred after service in light of the Veteran's STRs which make no mention of neck complaints. The Board also considered the Veteran's lay statements in support of the claim. The Veteran has stated that he believed that his neck disability was related to his in-service injury from falling off tall stool in guard tower and landing on his back. However, in weighing the evidence of record against his claim, there is no evidence of complaints of neck pain during his separation examination or in medical treatment records after he left service. Notably, lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 425 (2011), as to the specific issue in this case, the etiology of his neck pain, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board is sympathetic to the Veteran's assertions and regrets it cannot issue a favorable decision. In sum, there is no competent and credible evidence indicating that the Veteran's current neck pain stem from an in-service injury from falling off the tall stool in the guard tower. As such, the preponderance of the evidence weighs against the claim for service connection for neck pain. The benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Secondary Service Connection Relevant Facts and Analysis As noted above, the Veteran has a current diagnosis for cervical strain. See October 2019 VA Neck (Cervical Spine) Conditions DBQ. Thus, the first element of secondary service connection, a current disability, has been met. The Veteran is service-connected for left and right (bilateral) leg radiculopathy. See July 2021 Rating Decision Codesheet. As such, he meets the second element of secondary service connection. The Board notes that the Veteran is not service-connected for back disability and he cannot obtain secondary service connection based on his back disability. The question for the Board is whether the Veteran's service-connected bilateral radiculopathy caused or aggravated his current neck pain disability. In October 2019, a VA examiner opined that it was less likely than not that the Veteran's current neck pain was caused or aggravated by the Veteran's service-connected radiculopathy. See October 2019 VA Medical Opinion DBQ. The examiner reasoned that neck pain and radiculopathy are two separate and unrelated medical conditions. He also noted that there was no evidence that radiculopathy would aggravate a neck disability. Id. The Board affords great probative weight to the October 2019 VA medical opinion because the opinion was based on the examiner's medical knowledge, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) In deciding the claim, the Board considered the credible lay evidence of record including the Veteran's testimony. The Veteran has stated that he believed that his neck pain was secondary to back and leg pain. Notably, lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 425 (2011), as to the specific issue in this case, whether his neck pain was caused or aggravated by his radiculopathy, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran's statements are not competent medical opinions whether his neck pain was caused or aggravated by his radiculopathy, and are afforded less probative weight to the extent they were offered as medical opinions. In sum, the Board finds that the probative medical evidence outweighs the lay assertions in this case. There is also no competent evidence of nexus between the current neck pain and a service-connected disability. The Board is sympathetic to the Veteran's assertions and regrets it cannot issue a favorable decision. However, the preponderance of the evidence weighs against the claim for service connection for neck pain. The benefit-of-the-doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.