Citation Nr: 21075936 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-12 924 DATE: December 21, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's lumbar spondylosis began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's left knee degenerative arthritis did not begin in service, did not manifest to a compensable degree within the applicable presumptive period, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to May 1974. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a November 2018 Travel Board hearing. The transcript of the hearing is of record. A December 2018 Board decision reopened the issues of service connection for left knee and back disabilities and depressive disorder. An August 2020 Board decision granted service connection for schizophrenia and remanded the issues on appeal for further development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). 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. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Id. at 54. 1. Entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for his back disability. After a review of the competent evidence of record, the Board concludes that the Veteran's current lumbar spondylosis is not related to service and service connection is therefore not warranted. The October 2019 VA knee examination was already found to be inadequate in the August 2020 Board decision. It will therefore not be addressed herein. Service treatment records are silent for complaints, treatment or diagnosis of back pain or a back disability. The April 1974 separation examination is silent for musculoskeletal complaints or diagnoses. An August 1975 VA examination found that there were no diseases of the musculoskeletal system and noted forward flexion of the trunk to 100 degrees. Reflexes were also noted to be normal. A September 1982 VA examination included a musculoskeletal examination that found no abnormal conditions and specifically noted normal range of motion in the neck and low back. The examiner also noted that there was no history of trauma to the joints. A November 2005 VA examination diagnosed lumbar myalgia with lumbar spondylosis. The examiner noted that the Veteran complained of backache for the past 5 years but had normal range of motion, and that an x-ray showed osteophytes throughout the spine and mild lumbar spondylosis. The examiner also noted tenderness in the paralumbar region. VA treatment records show complaints of chronic back pain but are silent regarding onset and etiology. January 2005 records show that a review of symptoms was negative for low back pain and range of motion was noted to be intact. March 2009 VA treatment records noted chronic back pain, worse over time. January 2019 VA records also noted chronic low back pain. A July 2021 VA examination diagnosed lumbar myalgia with spondylosis. The examiner noted the Veteran's reports of heavy lifting in the motor pool in service causing back pain as well as problems sitting and standing, and that it stayed the same since that time. The examiner found that the lumbar spondylosis was not likely due to service. As a rationale, the examiner stated that spondylosis was an age-related change of the bones and discs. The examiner also noted that the Veteran's recollection of his symptoms was inconsistent with the medical records, which were silent for back complaints even though they showed multiple other somatic complaints, and a 1982 musculoskeletal examination was negative for a back condition. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the November 2018 Board hearing, the Veteran reported that he first realized he had back problems while working with a friend on a roof in 1998. He also stated that he started getting treatment for back pain at that time. The Board notes that the Veteran is competent to report the onset of lay-observable symptoms such as pain and assigns his statements significant probative weight. The Board finds that the preponderance of the competent evidence of record does not support the conclusion that the Veteran's lumbar spondylosis began in service or was otherwise due to service. The only competent evidence of record regarding the etiology of the Veteran's lumbar spondylosis is the July 2021 opinion, which found that it was not etiologically related to service, including the Veteran's work in the motor pool, explaining that lumbar spondylosis was not caused by such activity but was instead an age-related change of the bones and discs. While the Veteran believes that his back disability is due to activity in service, he does not possess the medical expertise required to provide an opinion as to the etiology of the currently diagnosed lumbar spondylosis. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board therefore assigns more weight to the opinion of the VA opinion and finds that lumbar spondylosis is not likely etiologically due to service. The July 2021 opinion also found that lumbar spondylosis did not begin in service. specifically addressing the Veteran's lay statements of back pain since service but noting that they were inconsistent with the other evidence of record. The Board finds that the bulk of the competent evidence is consistent with the July 2021 opinion as it does not show back symptoms until well after service. Service treatment records are silent for back symptoms, including reports of pain. Notably, the August 1975 VA examination, less than a year after service, did not find a back disability and noted forward flexion within normal limits. The September 1982 VA examination also did not find a back disability, noting both normal range of motion and that there was no history of trauma. Finally, the opinion is consistent with the Veteran's own testimony at the November 2018 hearing, when he stated that he did not notice back problems until 1998, over 20 years after service. The evidence is therefore against finding that the Veteran's back disability began in service. The Board acknowledges that the Veteran reported back pain since service at the July 2021 VA examination and that he is competent to report lay observable symptoms such as pain. However, those reports are inconsistent with his testimony at the November 2018 Board hearing, when he stated that he did not notice symptoms until 1998, as well as with the 1975 and 1982 VA examinations, which both contained musculoskeletal examinations and were negative for a back disability. Therefore, taken alone and balanced against the remainder of the lay and medical evidence showing onset well after service, the weight of the evidence is against finding that he had chronic back pain that began in service and persisted after service. The Board therefore finds that the preponderance of the evidence indicates that the Veteran's lumbar spondylosis was not caused by or incurred in service. Service connection is therefore not warranted. 38 C.F.R. § 3.303. 2. Entitlement to service connection for a left knee disability The Veteran contends that he is entitled to service connection for his left knee disability. After a review of the competent evidence of record, the Board concludes that the Veteran's current left knee degenerative arthritis is not related to service and did not manifest to a compensable degree within a year of separation from service, and service connection is therefore not warranted. Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Degenerative arthritis, is manifest to a compensable degree when it is established by x-ray findings and has either compensable limitation of motion under the appropriate diagnostic code for the specific joint involved or when there is limitation of motion confirmed by findings of painful motion, swelling or muscle spasm, or when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003. The October 2019 VA knee examination was already found to be inadequate in the August 2020 Board decision. It will therefore not be addressed herein. March 1974 service treatment records show complaints of left knee pain while walking and pain on extension. The April 1974 separation examination from the following month is silent for musculoskeletal complaints or diagnoses. An August 1975 VA examination found that there were no diseases of the musculoskeletal system. Reflexes were also noted to be normal. The examination report was silent for knee complaints. A September 1982 VA examination included a musculoskeletal examination that found no abnormal conditions and specifically noted normal range of motion in the knees. The examiner also noted that there was no history of history of knee fractures or other trauma to the joints. VA and private treatment records show left knee complaints but are silent for findings of onset or etiology. April 2001 VA treatment records show a diagnosis of osteoarthritis, though the body part was not specified. September 2007 private records noted left knee problems. August 2013 VA records show a diagnosis of left knee arthralgia. March 2019 VA records show complaints of non-acute left knee pain and the provider assessed left side knee pain. A November 2005 VA general medical examination noted degenerative joint disease of knee with onset 2 years earlier. The examiner found normal range of motion in all extremities. The examiner did not offer a nexus opinion. An August 2009 VA examination diagnosed left knee osteoarthritis and noted pain on extension. The examiner did not offer an opinion regarding onset or etiology. A July 2021 VA examination diagnosed left knee degenerative arthritis. The examiner noted the Veteran's reports of left knee pain beginning 25-30 years prior and also noted that the Veteran denied trauma to the knee. The examiner found that the Veteran's left knee degenerative arthritis was not likely due to service. As a rationale, the examiner acknowledged that the Veteran reported knee pain in service but found that it did not persist, noting that the 1982 physical examination was normal. The examiner also noted that there was no indication of left knee trauma in service and there were no x-rays of arthritis until many years after service. The examiner also explained that degenerative arthritis, as seen in this case, was unlikely to result from a single nontraumatic complaint while in service and that osteoarthritis was a wear-and-tear type of arthritis. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the November 2018 Board hearing, the Veteran reported that he sought treatment for his left knee and was told it was due to age and arthritis. The Board notes that the Veteran is competent to report treatment he receives and accords those statements significant probative weight. The Veteran also stated that his knee injury in service was associated with working, running, doing exercise, and working in the motor pool. The Board finds that the preponderance of the competent evidence of record does not support the conclusion that the Veteran's left knee degenerative arthritis began in service or within a year of separation from service or that it was otherwise due to service. The only competent evidence of record regarding etiology is the July 2021 VA opinion, which found that it was not caused by service, including the documented in-service knee pain, explaining that degenerative arthritis of the type involved here is not caused by a non-traumatic complaint but by wear and tear. While the Veteran believes that his left knee disability is due to activity in service, as a lay person he does not possess the medical expertise required to provide an opinion as to the etiology of the currently diagnosed degenerative arthritis. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board therefore assigns more weight to the opinion of the VA opinion and finds that left knee degenerative arthritis is not likely etiologically due to service. The July 2021 examiner also specifically found that the current knee disability did not begin in service as the Veteran's in-service knee complaint did not persist after March 1974. The opinion is supported by other competent evidence of record, particularly as the separation examination just one month after the March 1974 complaints was silent for knee problems, including arthritis, and the VA examination a year later in August 1975 found no musculoskeletal problems and was silent for any knee complaints. The September 1982 VA examination also did not find a knee disability, noting both normal range of motion and that there was no history of trauma. The first clear indication of knee arthritis in the record is the November 2005 examination noting that knee degenerative joint disease was established 2 years earlier. Even if the April 2001 non-specific notation of "osteoarthritis" is liberally construed as applying to the knee, this would not show arthritis until over 25 years after service. Finally, the July 2021 opinion is consistent with the Veteran's own statements at the July 2021 examination, when he stated that his knee problems began 25-30 years ago, or between 1991 and 1996, many years after service and not within the presumptive period. The evidence is therefore against finding that the Veteran's knee disability began in service or that it manifested to a compensable degree within a year of separation. The Board acknowledges that the Veteran had a documented knee injury in service and has reported ongoing pain associated with that injury. However, those reports are inconsistent with his reports of symptoms beginning in the 1990s, well after service, as well as with the 1975 and 1982 VA examinations, which both contained musculoskeletal examinations and were negative for knee complaints or findings of a disability. Therefore, taken alone and balanced against the remainder of the lay and medical evidence showing onset well after service, the weight of the evidence is against finding that he had chronic knee pain that began in service and persisted after service. The Board therefore finds that the preponderance of the evidence indicates that the Veteran's left knee degenerative arthritis was not caused by or incurred in service and that it did not manifested to a compensable degree within a year after the end of his qualifying period of service. Service connection is therefore not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.