Citation Nr: 21072558 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-10 085 DATE: December 3, 2021 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine (claimed as arthritis) is denied. Entitlement to service connection for a right knee disability, to include degenerative arthritis, status-post right knee arthroscopy with medial meniscus tear, chondromalacia, and synovitis also is denied. FINDING OF FACT The most probative evidence is against finding that the Veteran's low back and right knee disabilities were caused or aggravated by her service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for these low back and right knee disabilities. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1972 to September 1975. This appeal to the Board of Veterans' Appeals (Board) is from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, March 2021, and most recently in August 2021, the Board remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. In that most recent remand, the Board determined that the medical opinions obtained in April and May 2021 following and because of the immediately preceding remand were inadequate and, consequently, requested additional medical comment to resolve those failings. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 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 relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Certain diseases, including arthritis, are considered "chronic", per se, and therefore also may be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted, as well, on a secondary basis for disability that it caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her 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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a low back disability 2. Entitlement to service connection for a right knee disability The Veteran contends these disabilities are the result of her service or were aggravated by her service. The Veteran had her right knee examined by VA in October 2019. She reported right knee pain since her service that had progressed over time. She also reported requesting treatment for her right knee while in service. She added that she underwent arthroscopic surgery on her right knee in September 2018. She had decreased range of motion of this knee and evidence of pain. She had no ankylosis, recurrent subluxation, or instability of this knee. The examiner diagnosed degenerative arthritis of this knee. The Veteran's low back was examined by VA in May 2021. She reported having cleaning duty while in service, for 6 months, when she began experiencing low back pain. She did not recall whether she sought treatment for her pain while in service. She complained of constant pain that worsened with ambulation. She denied any back surgeries. She had decreased range of motion of her lumbar spine. The examiner diagnosed DDD, intervertebral disc syndrome (IVDS), and spinal stenosis. The file was sent to a VA examiner in October 2021 for the additionally needed medical nexus opinions concerning the origins of these claimed disabilities particularly in terms of whether related or attributable to the Veteran's service. In response, the examiner opined that the Veteran's current right knee disability was less likely than not incurred in or caused by her service. The examiner explained that no chronic diagnosis of a right knee disability was made in service, and there was no right knee disability noted during the Veteran's military separation examination. The examiner considered her lay statements but did not find them more persuasive than the medical evidence devoid of any earlier indication of this now claimed disability as reason to attribute it to her service. Turning to the Veteran's lumbar spine disability, the examiner also opined that it, too, was less likely than not caused by her service. The examiner noted there was no diagnosis of a lumbar spine condition either at entrance into or separation from service or at any time while in service. The examiner considered the Veteran's lay statements but did not find them more persuasive than the medical evidence devoid of any earlier indication of this now claimed disability. The examiner thus disassociated both these claimed disabilities from the Veteran's military service. There is no equal, or certainly no more probative (competent and credible), medical nexus opinion refuting that VA examiner's unfavorable conclusion of no correlation between the Veteran's service and these later diagnosed right knee and low back disabilities. Like the VA examiner, the Board has considered her lay statements and pleadings regarding the origin or cause of these disabilities in relation to her service. But, while she is certainly competent to report on her symptoms (pain, etc.), she does not have the competence to ascribe her symptoms to a particular diagnosis and provide a probative opinion regarding their etiology, especially in terms of whether related or attributable to her service. This determination is outside the realm of her lay competence since the conditions at issue are medically complex, not instead merely simple. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and 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). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.