Citation Nr: 21070015 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-33 275 DATE: November 22, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a neck disorder is denied. REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for bilateral lower extremity sciatica is remanded. FINDINGS OF FACT 1. The Veteran's right knee disorder did not originate in service or until years after service and is not otherwise etiologically related to service. 2. The Veteran's neck disorder did not originate in service or until years after service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1973 to July 1976. The Veteran also served in the Navy Reserve from November 1985 to November 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2016, June 2017, and April 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is in the record. This case was before the Board in January 2018, March 2019, April 2020, November 2002, and June 2021. The Veteran's claims were remanded for further development. The case is now again before the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right knee disorder is denied. The Veteran contends that he has a right knee disorder that is related to an in-service injury, event, or disease, to include secondary to his service-connected left knee disability. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for a right knee disorder. A June 1976 separation report of medical history documented the Veteran's report that he did not have any swollen or painful joints or a trick or locked knee. A June 1976 separation medical examination did not report any knee issues. A February 1979 private clinical record reported the Veteran underwent arthroscopy of the left knee. The arthroscopy revealed a complete anterior cruciate tear which was felt to be old. A military personnel record shows that the Veteran enlisted in the Navy Reserve in November 1985. A November 1985 enlistment report of medical history documented the Veteran's report that he did not have any swollen or painful joints or a trick or locked knee. The Veteran reported he had knee surgery in 1979. A November 1985 enlistment medical examination reported that the Veteran's lower extremities were normal. A surgical scar was noted on his left knee. A June 2007 MRI of the Veteran's right knee revealed moderately severe osteoarthritic changes medially and laterally. An August 2007 private medical record reported that the Veteran underwent left knee total knee replacement. A November 2008 private treatment record reported a diagnosis of right knee degenerative joint disease. A December 2008 private medical record reported that the Veteran underwent right knee arthroplasty in December 2008. In March 2012, the Veteran filed a service connection claim for "right knee replacement." In May 2013, the Veteran submitted a knee conditions disability benefits questionnaire completed by a doctor in May 2013. The Veteran was diagnosed with bilateral knee pain and severe arthritis. In June 2017, the Veteran submitted a substantive appeal in which he stated that his military duties placed agonizing trauma on his back and knees. He went to a VA hospital in 1979 that resulted in a left knee operation. He indicated that his knee pain was worse after the surgery. A September 2019 VA knee conditions examination report shows a diagnosis of bilateral knee joint osteoarthritis and bilateral total knee replacements. In June 2021, the Board remanded the claim for a right knee disorder to obtain nexus opinions. A VA examiner reviewed the Veteran's claims filed and provided medical opinions in August 2021. The examiner opined that the Veteran's right knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that the Veteran did not report a knee condition in service. The Veteran was seen by orthopedics for the left knee after an injury in 1979, though there is no mention of right knee trouble. A 1985 enlistment examination noted the Veteran marked that he had no knee trouble. A 2008 operative note reported that the Veteran had right total knee replacement for degenerative joint disease. Degenerative arthritis is age-related "wear and tear." The Veteran's chronological records support labor work and degenerative arthritis requiring surgery in someone over 50 years of age, which is consistent with age-related "wear and tear." There is no evidence to support a right knee condition that was incurred in service or an in-service traumatic injury that caused the current condition of the right knee. The examiner opined that the Veteran's right knee disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left knee disorder. As rationale, the examiner noted that the Veteran reported having no knee trouble at examinations in June 1976 and November 1985. A November 1979 record noted the Veteran had a left lateral meniscectomy with no symptoms. A 2008 operative note reported that the Veteran had a right total knee replacement for degenerative joint disease. The examiner explained that degenerative arthritis is age-related "wear and tear." The Veteran's chronological records support labor work and degenerative arthritis requiring surgery in someone over 50 years of age, which is consistent with age-related "wear and tear." The examiner concluded that there is no evidence to support that the right knee condition was caused by the left knee condition. Regarding aggravation of the right knee disorder, the examiner opined that a baseline level of severity could not be established as 2008 operative reports indicates degenerative joint disease and elective total knee replacement. The examiner opined that the Veteran's right knee disorder is less likely than not aggravated beyond its natural progression by the left knee condition. As rationale, the examiner explained that the Veteran reported having no knee trouble at examinations in June 1976 and November 1985. A November 1979 record noted the Veteran had a left lateral meniscectomy with no symptoms. A 2008 operative note reported that the Veteran had a right total knee replacement for degenerative joint disease. The Veteran also had a left total knee replacement for degenerative joint disease in 2007. The examiner explained that degenerative arthritis is age-related "wear and tear." The Veteran's chronological records support labor work and degenerative arthritis requiring surgery in someone over 50 years of age, which is consistent with age-related "wear and tear." The examiner concluded that there is no evidence to support that the right knee condition was aggravated beyond its natural progression by the Veteran's left knee condition. As previously described, the Veteran's service medical records do not reflect any complaints, findings, or treatment for any conditions related to a right knee disorder. A June 1976 separation report of medical history documented the Veteran's report that he did not have any swollen or painful joints, or a trick or locked knee and a June 1976 separation examination did not report any knee complaints. A November 1985 enlistment report of medical history documented the Veteran's report that he did not have any swollen or painful joints, or a trick or locked knee and a November 1985 enlistment medical examination reported his lower extremities were normal. The Veteran was first diagnosed with right knee arthritis in June 2007, nearly 30 years after his discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000; see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Although a lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, the record dates a diagnosis of a right knee disorder to more than 30 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his right knee disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the August 2021 medical opinion. After reviewing the Veteran's claims file, the examiner opined that the Veteran's right knee disorder is less likely than not incurred in or caused by an in-service injury, event, or illness, or was aggravated by or proximately due to the Veteran's service-connected left knee disorder. The examiner concluded that there is no evidence to support a right knee condition that was incurred in service or an in-service traumatic injury that caused the current condition of the right knee. The examiner also concluded that there was no evidence to support that the right knee condition was caused by or aggravated beyond its natural progression by the Veteran's left knee condition. The Veteran's chronological records support labor work and degenerative arthritis requiring surgery in someone over 50 years of age, which is consistent with age-related "wear and tear." Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a right knee disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a right knee disorder must be denied. 2. Entitlement to service connection for a neck disorder is denied. The Veteran contends that he has a neck disorder that is related to an in-service injury, event, or disease. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for a neck disorder. A June 1976 separation report of medical history documented the Veteran's report that he did not have any recurrent back pain or swollen or painful joints. A June 1976 separation medical examination did not report any neck complaints. A military personnel record reflects that the Veteran enlisted in the Navy Reserve for two years in November 1985 and was discharged in November 1987. A November 1985 enlistment report of medical history documented the Veteran's report that he did not have any recurrent back pain or swollen or painful joints. A November 1985 enlistment medical examination reported that the Veteran's spine was normal. An August 2007 private patient information sheet documented the Veteran's report that he was injured carrying another person in July 1979. The Veteran reported that he experienced back and hip pain but no neck pain. An August 2007 private medical record by a treating physician reported the Veteran had a history of an injury to his back, which was noted to have been incurred "originally in 1979." An October 2007 private MRI of the cervical spine showed a degenerated disc at C5-C6 that narrows the canal a little bit more on the left than right. A December 2013 VA medical record reported that an MRI showed arthritis in the neck. In December 2015, the Veteran filed a service connection claim for a cervical strain condition with degenerative changes. A May 2017 VA treatment record reported an examination of the neck found no abnormalities. The Veteran reported that he was not experiencing any pain. A July 2017 VA primary care note reported the Veteran had experienced recent neck and back pain. The Veteran was unclear of the cause of the pain but reported it had been ongoing for the last 2 months. The Veteran was provided a VA neck conditions examination in March 2021. The Veteran was diagnosed with degenerative disc disease of the cervical spine with bilateral lower extremity radiculopathy. The Veteran stated that he noted neck pain during his service in the Navy. He related this to heavy lifting and jumping between areas on the ships. Over time his neck pain increased. He states he ultimately had "neck surgery" approximately 2 years ago. He described having had a "fusion" but was not sure which spinal segments were involved. In June 2021, the Board remanded the claim to obtain a nexus opinion. A VA examiner reviewed the Veteran's claims filed and provided a medical opinion in August 2021. The examiner opined that the Veteran's neck disorder was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner noted that the Veteran reported having no recurrent back trouble at his separation examination in June 1976. A December 2013 MRI showed mild degenerative changes. The examiner noted she had reviewed the October 2017 Board hearing testimony, the March 2021 buddy statement, the April 2021 medical opinions, and the June 2021 Board remand. The examiner noted that the Veteran had degenerative arthritis noted in 2013, which is "age related wear and tear." This is consistent with the Veteran's age and work history. There is no evidence to support traumatic arthritis or an injury in service that caused the Veteran's neck disorder. There was no report of neck injury or pain at the time of separation from active service. Moreover, there was no neck condition reported on the 1985 enlistment exam. Based on medical records reviewed, the claimed condition of the cervical spine is less likely than not incurred in or caused by in-service injury or events. As previously described, the Veteran's service medical records do not reflect any complaints, findings, or treatment for any conditions related to a neck disorder. A June 1976 separation report of medical history documented the Veteran's report that he did not have any recurrent back pain or swollen or painful joints. A June 1976 separation medical examination did not report any neck complaints. A November 1985 enlistment report of medical history documented the Veteran's report that he did not have any recurrent back pain or painful joints and a November 1985 enlistment medical examination reported his spine was normal. An August 2007 private medical record reported the Veteran experienced back pain but no neck pain. The Veteran was first diagnosed with a degenerated disc in the cervical spine in October 2007, more than 30 years after his discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000; see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates a diagnosis of a neck disorder to more than 30 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his neck disorder. Consequently, the Board gives more probative weight to the August 2021 medical opinion. After reviewing the Veteran's claims file, the examiner opined that the Veteran's neck disorder was less likely than not incurred in or caused by an in-service injury, event, or illness, as there is no evidence to support traumatic arthritis or an injury in service that caused the Veteran's neck disorder. The examiner explained that the Veteran's degenerative arthritis was consistent with the Veteran's age and work history. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a neck disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a neck disorder must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disorder is remanded.\ The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a right ankle disorder, as the medical opinion of record is insufficient for adjudicative purposes. In its June 2021 remand, the Board found the April 2021 VA medical opinion for the Veteran's right ankle to be inadequate as the examiner reported that the evidence showed no record of a right ankle injury in service. However, a December 1975 service treatment record reported that the Veteran sprained his right ankle months earlier. The Board also found that the opinion failed to address relevant lay statements. Thus, the Board directed the RO to obtain new nexus opinion that must discuss the Veteran's contention that he twisted his ankle during service, and that he sought treatment approximately six months after separation, as he reported in his April 2020 substantive appeal. The Veteran was provided a VA medical opinion in August 2021. The examiner opined that the Veteran's right ankle disorder was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that there is no evidence of a right ankle injury with trauma or residuals from service. The Veteran does not report a right ankle condition at the time of separation and there is no right ankle condition reported on the 1985 enlistment exam. Although the examiner noted that the Veteran did not report a right ankle condition at the time of his 1976 separation, the examiner did not address that the Veteran's service treatment records document a right ankle sprain or that the Veteran reported he had foot trouble on his June 1976 separation report of medical history. Thus, the opinion and rationale provided by the examiner failed to sufficiently analyze relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the examiner failed to address the Veteran's lay statement that he sought treatment for his right ankle approximately six months after separation, which was required by the June 2021 Board remand. Due to these deficiencies of the August 2021 medical opinion, remand is warranted to obtain an addendum opinion to address the etiology of the Veteran's right ankle disorder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Entitlement to service connection for a low back disorder is remanded. 3. Entitlement to service connection for bilateral lower extremity sciatica is remanded. In its June 2021 remand, the Board directed that the Veteran should be provided a VA examination of his low back as a VA examination had yet to be provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also remanded the Veteran's service connection claim for bilateral lower extremity sciatica and directed that a new VA examination of the Veteran's low back should assess him for radiculopathy or similar peripheral nerve disorders. In August 2021, the Veteran was provided medical opinions for his low back disorder and bilateral lower extremity sciatica but no VA examination. Thus, the Board finds that a remand is warranted for these claims to schedule the Veteran for a VA back examination. Stegall v. West, 11 Vet. App. 268 (1998). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion on the etiology of the Veteran's claimed right ankle disorder. Schedule the Veteran for another in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner must address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the right ankle disorder was incurred in service or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the right ankle disorder manifested within one year of separation? The examiner should note that a December 1975 service treatment record documents that the Veteran sprained his right ankle in service and that the Veteran reported he had foot trouble on his June 1976 separation report of medical history. The examiner must discuss the Veteran's contention that he twisted his ankle during service, and that he sought treatment approximately six months after separation. The examiner should provide a complete rationale for any opinion expressed. 2. Schedule the Veteran for an examination to assess the nature and etiology the Veteran's claimed lumbar spine (low back) disorder and bilateral lower extremity sciatica. After reviewing the claims file, including this remand, the examiner must address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the lumbar spine disorder was incurred in service or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the lumbar spine disorder manifested within one year of separation? The examiner must discuss the Veteran's April 2020 and May 2021 statements about his back disability. (c.) Is it at least as likely as not (50 percent or greater probability) that the bilateral lower extremity sciatica (or similar peripheral nerve disorder) is proximately due to the claimed lumbar spine disorder? (d.) Is it at least as likely as not (50 percent or greater probability) that the bilateral lower extremity sciatica (or similar peripheral nerve disorder) is aggravated beyond its natural clinical course by the claimed lumbar spine disorder? 3. The examiner should set forth all examination findings and a complete rationale for any opinion expressed should be provided. 4. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, Associate 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.