Citation Nr: 21069315 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-61 770 DATE: November 18, 2021 ORDER Service connection for a low back disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT No low back disability began during service or is related to service in any other way. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to November 2000. This appeal is before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. In February 2020, the Board denied the matters on appeal, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand. In a December 2020 Order, the Court granted the motion and remanded the case to the Board. In May 2021, the Board remanded the matters on appeal to the agency of original jurisdiction (AOJ). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 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 the claimant. Service connection for a low back disability is denied. Service treatment records reflect that the Veteran was treated in June 1987 for a small, painful bump in the lower lumbar area, diagnosed as an infected sebaceous cyst. It was removed and the wound was packed and dressed. Service records otherwise reflect no complaints, treatment, or diagnosis relating to the back. On August 2000 examination for separation from service, the Veteran had a normal clinical evaluation of the spine and musculoskeletal system; at that time, he specifically denied any past or current history of "[r]ecurrent back pain or any back injury." Post-service private and VA treatment records beginning in 2011 reflect that, in April 2012, on being treated for recent knee pain, the Veteran denied back pain, arthritis, and muscle aches. They also reflect complaints of muscle stiffness and gait disturbance related to Parkinson's Disease. On December 2014 VA examination, the Veteran reported that he first experienced back pain in 1985 or 1986 when he was doing sit ups on the asphalt during physical training, that he developed a cyst, which was removed, and that he had pain in the low back area where the cyst was removed. He reported it as an aching pain that resolved with stretching, and for which he did not take medication or see a physician, and with no radiculopathy symptoms. He also reported very occasional flare-ups with increased activity such as bending over with yardwork, where he had to take a break for a few minutes due to increased pain. On physical examination, the Veteran demonstrated a range of motion within normal limits but had localized tenderness in his thoracolumbar spine. Imaging tests revealed scattered degenerative changes throughout the lumbar spine with multilevel degenerative facet hypertrophy and mild degenerative disc space narrowing at L4-L5. The examiner's diagnosis was myofascial lumbar pain and lumbar degenerative disc disease and joint disease. The Veteran underwent VA examination again in June 2021 and, at that time, reported straining his low back playing sports in service, and that his low back stiffened up at times and required rest. After reviewing the records and examining the Veteran, the VA examining physician opined that the Veteran's current low back disability was less likely than not related to service. The physician noted the Veteran's reports of back pain beginning in service, but also noted the lack of any documentation of back problems in service, including at separation, the approximately 14-year period between the Veteran's separation from service and when he first reported back pain to a medical provider, and his age (54) when he first reported it, which weighed against a service nexus. The physician further noted the Veteran's in-service sebaceous cyst treatment, but that there was no ongoing lumbar spine issue ascribable to the cyst; the cyst was in the skin and would not lead to later low back pain, and the location of the cyst was just a coincidence. Rather, the physician indicated that the Veteran's low back arthritis was commensurate with his age and lifestyle, and that such low back disability was most likely related to his active lifestyle, including participation in sports, and age. The Board finds the June 2021 VA physician's opinion highly probative in this case. The VA physician gave a thorough explanation supported by facts consistent with the record. He explained why the Veteran's current low back disability would likely be unrelated to service, including why his in-service sebaceous cyst, a skin disorder, while located in the low back area, would not be related to the musculoskeletal disorder of lumbar degenerative disc disease and joint disease several decades later. The examiner considered the Veteran's subjective history and statements as well as the documented service and post-service medical record, and determined the likely non-service etiology of the Veteran's low back disorder to be his age and highly active lifestyle. There is, moreover, no competent evidence, such as a medical opinion, contradicting the VA physician's opinion or otherwise supporting a nexus between a current low back disability and service. The Board notes the Veteran's reports of his low back pain beginning in service. However, the record lacks any documentation of such back pain in service or after service until 2014, despite containing numerous instances of complaints of and treatment for other medical problems during this period including musculoskeletal problems like knee pain and ankle strain. On the contrary, the Veteran affirmatively denied any past or current history of "[r]ecurrent back pain or any back injury" at the time of his August 2000 separation examination, and again denied back pain on treatment for knee pain in April 2012. Thus, to the extent that the Veteran asserts that his low back pain began in service and continued to the present, the Board finds such assertion not to be credible. Therefore, a preponderance of the evidence is against a finding that degenerative disc or joint disease or any other low back disability began during service or is related to service in any other way. Accordingly, service connection for a low back disability must be denied. As a final matter, in his November 2016 substantive appeal, the Veteran asserted that his claimed low back pain might be secondary to cervical myelopathy. However, the Veteran is not service-connected for cervical myelopathy. If the Veteran feels his cervical myelopathy is related to service, and that his low back pain is related to such myelopathy, he should file a service connection claim for such cervical myelopathy. Currently, as the Veteran is not service-connected for such myelopathy, there is no basis for service connection for low back disability secondary to it. See 38 C.F.R. § 3.310. REASONS FOR REMAND In its May 2021 remand, the Board noted that, at the time of his August 2000 examination for separation from service, the Veteran reported a history of having a "trick" or locked knee, and that on November 2014 VA examination, the Veteran specifically reported that he had developed pain in both knees during service in 1997. Therefore, in requesting an opinion from a VA examiner as to whether a knee disability was related to service, the Board specifically instructed: "the examiner should consider the Veteran's lay statements concerning in-service onset of knee pain in 1997 as well as the August 2000 separation examination which indicates the presence of a 'trick' knee or 'locked' knee. The examiner is advised that the Veteran is competent to report his observations concerning the onset, and nature of, his right and left knee symptoms." The Veteran was provided a VA examination in June 2021, and the examiner gave an opinion as the etiology of the Veteran's knee disability. In addressing the Veteran's lay statements and August 2000 report on separation examination, the VA examiner merely stated: "This is already in the records and has been reviewed by the Board of Appeals. The Board was well aware of the 'trick knee' history. I see nothing in the C file to change the findings of the appeal board." It appears that the June 2021 VA examiner was referring to the Board's February 2020 decision denying service connection for right and left knee disabilities, which was vacated by the Court in December 2020. The examiner's response contained no explanation as to how the Board's findings in that decision might be relevant to the examiner's medical opinion, or any explanation of the examiner's statement, generally. It is not clear from the examiner's response how he might have considered the Veteran's lay statements and August 2000 report of trick or locked knee, and why or why not these factored into the examiner's opinion. Accordingly, a clarifying opinion is necessary to determine why or why not, and how, the Veteran's lay history of knee pain and report of trick or locked knee in August 2000 affects the examiner's opinion regarding the etiology of any current knee disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Forward the claims file to the VA examiner who provided the June 2021 VA opinion. If the examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested information. If the requested opinions cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner. After reviewing the claims file, the examiner should again consider the Veteran's lay statements concerning in-service onset of knee pain in 1997 as well as the August 2000 separation examination containing the reported history of a 'trick' knee or 'locked' knee. The examiner is again advised that the Veteran is competent to report his observations concerning the onset, and nature of, his right and left knee symptoms. The examiner should discuss whether and how the Veteran's lay history of knee pain and report of trick or locked knee in August 2000 affects the examiner's opinion regarding the etiology of any current knee disabilities, and provide38 C.F.R. § an explanation of why or why not. The examiner should note that previous findings or determinations of the Board are not relevant and may not be cited in support of any opinion. 2. After completing the above and any other necessary development, readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.