Citation Nr: 21077399 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-30 423 DATE: December 29, 2021 ORDER Entitlement to service connection for neck disability is denied. Entitlement to service connection for left knee degenerative arthritis is denied. Entitlement to service connection for right knee degenerative arthritis is denied. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding a neck disability or a back disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding left and right knee degenerative arthritis began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left knee degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing is in the Veteran's file. The Veteran's claim was previously before the Board in June 2018, at which time it was remanded for additional development. The claim was returned to the Board and subsequently denied in a May 2019 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court then issued an order approving a Joint Motion for Remand (JMR) to address deficiency in the May 2019 Board decision in July 2020. The Board remanded the case in March 2021 and the case has, thus, been returned to the Board. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Among the diseases listed for which a nexus will be presumed include arthritis. See 38 C.F.R. § 3.307, 3.309. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, in determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for neck disability The Veteran contends his neck disability is related to service. Service treatment records (STRs) show the Veteran injured his neck following a motor vehicle accident (MVA) in November 1977. He was given a neck brace and placed on a 30-day physical profile. The Veteran testified he wore the neck brace for approximately 6 months, took medication and did physical therapy. STRs do not reflect any additional complaints or findings of a neck disability. Further, there were no findings of any neck condition at his periodic examination in September 1980. The Veteran testified that he received physical therapy for his neck condition with a chiropractor in the late 1980s, however, those treatment records are unavailable. The earliest post service records of neck complaints date from January 2003, where the Veteran complained of neck pain for the past two months after a bicycle fall. He felt a crook in his neck and decided to have it checked. VA treatment records show degenerative disc disease and spondylosis of the cervical spine from x-ray in February 2003. The Veteran was afforded a VA examination in May 2012. He was diagnosed cervical spondylosis, however, the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the in-service injury, since it had produced only a strain and had resolved. The examiner noted that the exit examination in September 1980 was normal. However, the JMR noted that the Board did not explain the discrepancy that the Veteran had separated in 1982 and he had declined a separation examination. The Board notes the examination in September 1980 was in fact, a periodic examination. Nevertheless, it post dated the Veteran's complaints and tends to support the examiner's conclusion that the injury had resolved. Pursuant to the Court JMR and subsequent Board remand, the Veteran was provided additional examination and an opinion obtained to determine the etiology of his neck disability. In a May 2021 VA medical opinion, the examiner noted the neck injury in service but also noted that the Veteran served an additional five years from the MVA without evidence of ongoing conditions. He found that his neck injury had resolved by the time of the periodic exam. The examiner stated that the exams are notably thorough, and it is unlikely a significant neck condition would have gone unnoted or unreported, especially given the fact that the medical officers would have had the Veteran's prior incidents available for review. He noted that the first evidence of a neck condition was around 2011. He referenced the Veteran's submission of the medical article regarding delayed onset of symptoms, however, the examiner stated that the articles do not support the Veteran's specific conditions and that delayed pain syndrome occurs slightly remote from acute events but would become apparent more proximate to those events. He conceded the Veteran has current degenerative disc disease of the cervical spine but found that this condition is a natural aging process which was age appropriate at the time of the Veteran's diagnoses. None of the events in service would predispose the Veteran to naturally occurring age appropriate DDD. He considered the Veteran's statement that the has had a continuity of symptoms since service, but found that the 1980 periodic examination, the medical records and the natural pathophysiology of the diagnosed conditions contradict that claim. Although the examiner inaccurately noted the first post-service neck condition around 2011 instead of 2003, the Board finds the opinion has probative value as the 2003 complaints were of recent onset, and were 2 decades after service during which the aging process would take place, leaving intact the conclusion that the events in service would not predispose the Veteran to naturally occurring cervical DDD. The Veteran was provided a VA cervical spine examination in July 2021, where his diagnosis of degenerative arthritis was confirmed. The Veteran stated the onset of his neck pain was the MVA in service. The examiner noted there were no further neck complaints after the MVA. In the corresponding medical opinion, the examiner opined that his neck condition was less likely than not related to service. He noted the neck condition in service was acute, as the Veteran was not seen for neck pain after the November 1977 MVA, and there was no evidence of chronicity of care in post-service treatment records until 2003, when he was diagnosed with cervical DDD by x-ray. As there was a large gap of care since 1977, a nexus could not be established. Another medical opinion was obtained in August 2021, to address the Veteran's argument of delayed onset of symptoms. The examiner noted the time frame in the article in which this was brought up of six months to two years, is not consistent with the Veterans claim of neck pain, which manifested 26 years after the MVA. There was no indication in the article, of delayed pain syndrome occurring more than two decades after the initial MVA. The examiner further explained that degenerative disease of the cervical spine is considered a natural aging process, which was age-appropriate at the time of the Veteran's diagnosis. Therefore, it is less likely than not that the Veteran's degenerative cervical spine disease is due to or incurred in events in service including the MVA in 1977. Rather, it is more likely than not that they are naturally occurring conditions due to normal wear and tear over time with the aging process. The Board finds that the competent and credible evidence on file weighs against the Veteran's claims. The Veteran's STRs show he denied having neck problems in at the time of the 1980 periodic examination. Additionally, the Veteran's post-service medical records are absent complaints of chronic neck pain until about 2003. (In this regard, it is noted the Veteran appears to have first presented to VA for care in 2001, at which time he complained of hemorrhoids, rather than neck pain.) As such, the Board finds that the Veteran's post-service lay statements regarding the onset of his neck pain are not credible as they are inconsistent with, and outweighed by, other, more contemporaneous lay statements (including his own) and the medical evidence of record. His statements alleging continuous neck pain from the time of the 1977 MVA contradict his own contemporaneous statements wherein he denied having neck pain. The medical evidence clearly shows no chronic condition diagnosed until 2003, over 20 years after separating from service. As such, the Board finds the Veteran's statements made at the time of seeking medical treatment more probative value than his current assertions. Moreover, the only medical opinions of record regarding service connection for a neck condition are negative. There is no positive medical evidence to the contrary of these opinions in the claims file and the treatment records do not provide any conflicting information. While the Veteran is competent to report having experienced symptoms of neck pain, he is not competent to determine that these symptoms were manifestations of his current disability. The issue is medically complex, as it requires interpretation of complicated diagnostic medical imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board concludes that the preponderance of the evidence is against the claim for service connection for a neck condition, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 2. Entitlement to service connection for left and right knee disability The Veteran claims his bilateral knee degenerative arthritis was the result of injuries to his knees during military service. First, the medical evidence shows the Veteran's diagnosis of bilateral knee degenerative arthritis during the appeal period. See July 2021 VA examination. Thus, the first element of service connection is met. Next, the Veteran's STRs show the Veteran twisted his knees in a basketball injury in January 1978. He was found to have a strained medial collateral ligament. In April 1978, he continued to have the same issues with his knees, and he was placed on a physical profile with limited duty. Therefore, the second element of service connection is met. However, it is noted that when examined in September 1980 for a periodic medical examination, the lower extremities were normal on clinical evaluation. Likewise, when the Veteran apparently first presented to VA for medical care in 2001, he made no complaints related to his knees, but rather he complained about his hemorrhoids. His knee complaints appear to begin in 2008. The Veteran was examined in May 2012, at which time the examiner opined that the bilateral knee disability is less likely than not caused by an in-service injury. The rationale was that the separation examination was normal. However, as mentioned above, the Veteran had declined a separation examination. Nevertheless, there is the September 1980 examination report dated after the documented in-service knee complaints, which show the lower extremities were normal on clinical evaluation. Further, in the 2012 examiner's report, he dated what he referred to as the exit examination as September 3, 1980. This is taken to mean the September 30, 1980, in-service periodic examination report. Thus, the plain meaning of his rationale is that because the September 1980 examination was normal, it is unlikely current disability relates to the pre-1980 injury/complaints. This implies, (but only implies) that current disability would only relate to the documented in-service injuries if there were documented complaints continuing since the first injury/complaints. The Veteran submitted an April 2021 letter from a private physician who stated she reviewed his active-duty medical records, VA treatment records and consulted with the Veteran. She wrote that the most recent MRI of the left knee shows that his MCL strain persists causing subsequent subluxation of the femur medial to the tibia. She also wrote that both active-duty records and VA records show the Veteran reporting his left knee "giving out", swelling and pain. She stated she has previously treated active-duty soldiers, trainees and retirees and she is an osteopathic physician with additional training in musculoskeletal issues and how they relate to the entire body's functioning. She found that the Veteran's initial injuries while in service have not only gotten worse over time but compensatory injuries to other joints have occurred. Based on a review of all the records and an examination, she opined that it is as likely as not for the right knee and more likely than not for the left knee that those conditions began while on active duty. Notably, she did not discuss the absence of any knee abnormality in the 1980 examination, or the interval of time between the in-service complaints and documentation of post service complaints, which was decades later, including many years of VA treatment without knee complaint. In a May 2021 VA medical opinion, the examiner found it was less likely than not that the Veteran's bilateral knee disability was incurred in or caused by an in-service injury. His rationale was that that the September 1980 periodic examination was normal and therefore the knee conditions were presumed to have resolved. He also noted that the first knee condition post service was around 2011 and that degenerative disease of the knees is considered a natural aging process, which was age appropriate at the time of the Veteran's diagnosis. None of the events in service were seen as predisposing the Veteran to naturally occurring, age-appropriate degenerative joint disease. Although the examiner inaccurately noted the first post-service knee condition around 2011 instead of 2008, the Board finds the opinion has probative value given only 3 years difference between the dates, and they were more than 2 decades after service during which the aging process would obviously take place, leaving intact the conclusion that the events in service would not predispose the Veteran to naturally occurring degenerative joint disease. The examiner also noted the representative's reference to an article regarding delayed onset of symptoms following a motor vehicle accident. The examiner noted the article referred to by the Veteran's representative do not address the veteran's conditions arising years post-service and does not apply to degenerative arthritis developing decades later. (With respect to the article referenced by the Veteran's representative, the reference occurred within a 2019 written brief presentation and was a document identified only by a web address, and was reportedly to the effect that a delay of symptom onset arising from a motor vehicle accident may be the norm. The summary provided by the representative did not identify any particular area of the body for which this is the case, nor did it actually describe a delayed onset of symptoms scenario. It noted 75 percent of individuals remain symptomatic 6 months after the accident and that for 20 percent symptoms worsen between the first and second years following the accident. Notably, the structure of the last sentences regarding symptom duration and symptom worsening do not make the point that these are delayed onset symptoms. In fact, to remain symptomatic 6 months after the accident indicates being symptomatic at the time of the accident. Worsening between the first and second year following the accident likewise does not show a delayed onset of symptoms. It describes the existence of symptoms that got worse over time.) In a July 2021 VA examination, the examiner similarly opined that it was less likely than not that the Veteran's bilateral knee disability was incurred in or caused by an in-service injury. The examiner found that the Veteran's knee conditions were acute, and no chronic knee condition was documented until 2008, which presents a large gap in care since discharge. In an August 2021 VA medical opinion, although primarily addressing the spine, the examiner also indicated it was less likely than not that the Veteran's bilateral knee disability was due to an in-service injury. She noted that the Veteran was diagnosed with bilateral degenerative arthritis of the knees in 2014 and noted that degenerative disease of the knees is considered a natural aging process. The Board concludes the medical opinions against the claim are more probative than the singe medical opinion supporting it. As indicated above, the favorable opinion did not acknowledge or address that following the Veteran's in-service knee complaints, a 1980 evaluation failed to find any lower extremity abnormalities, or the many years that elapsed without record of knee complaints including several years after entering the VA medical care system. Those facts, when seen in the light of the conclusion by the VA examiners that the Veteran's current disability is consistent with age related processes, supports the conclusion that the Veteran's current disability is not related to any in-service disease or injury. Although the adverse opinions are not in perfect alignment as to the specific dates of the post service diagnoses of degenerative joint disease affecting the knees, the difference is minimal and remain decades after service, which supports the overall conclusion this is age related, or in any case, unrelated to the complaints documented in the 1970s. In sum, the record shows knee complaints in the late 1970s; a normal medical evaluation of the Veteran in 1980; the Veteran entering the VA medical system in 2001 where his initial complaint concerns his hemorrhoids; and knee complaints beginning in approximately 2008. The favorable medical opinion does not account for the normal 1980 evaluation or the years without complaints. The adverse medical opinions altogether account for this history and express conclusions that correspond with it. Given that, and their acknowledged expertise, the Board concludes the greater weight of the evidence is against the claim. To the extent the Veteran may contend he has had chronic knee symptoms since service, the Board does not consider that to be credible. This is based on the absence of any knee abnormality found in 1980, or of any knee complaints when entering the VA medical system in 2001. 3. Entitlement to service connection back disability The Veteran contends that his back disabilities are related to an injury from an in-service MVA. With respect to the lumbar spine disability, service records show complaints of low back pain of 3 days duration in September 1980. Later that month when undergoing a periodic medical examination, the Veteran's spine was normal on clinical evaluation. When entering the VA medical treatment system in 2001, the Veteran did not complain of back pain, but only referenced hemorrhoids. These records first document back complaints in 2008, with X-rays taken in October 2008 suggesting the presence of mild degenerative spondylosis. VA examination and medical opinion dated in May 2021, revealed degenerative disease of the lumbar spine which was considered to be age appropriate and from the natural aging process. The examiner concluded the in-service back pain had resolved given the normal findings from the September 1980 examination report, as he considered it unlikely a back condition would have gone unnoted, and the medical officer would have had the Veteran's prior incidents available for review. Although the examiner dated the beginning of the Veteran's complaints to 2011, with imaging unavailable until 2014, it was his conclusion the Veteran's current disability is a natural aging process and was age appropriate at the time of the diagnosis. The examiner also did not think the Veteran had chronic symptoms since service in view of the 1980 examination report, the remainder of the medical records, and the pathophysiology of the diagnosed condition. Rather, it was a naturally occurring condition due normal to wear and tear over time with aging. Addressing a contention that a medical study from the Veteran's representative suggested there exists a delayed onset of symptoms following a motor vehicle accident, (where this Veteran was in a 1977 motor vehicle accident), the examiner noted that the article was inapplicable to degenerative arthritis developing decades after the accident. (As indicated above, with respect to the article referenced by the Veteran's representative, the Board notes it occurred within a 2019 written brief presentation and was a document identified only by a web address, and was reportedly to the effect that a delay of symptom onset arising from a motor vehicle accident may be the norm. The summary provided by the representative did not identify any particular area of the body for which this is the case, nor did it actually describe the phenomenon of delayed onset of symptoms. It noted 75 percent of individuals remain symptomatic 6 months after the accident and that for 20 percent symptoms worsen between the first and second years following the accident. Notably, the structure of the last sentences regarding symptom duration and symptom worsening do not make the point that these are delayed onset symptoms. In fact, to remain symptomatic 6 months after the accident indicates being symptomatic at the time of the accident. Worsening between the first and second year following the accident likewise does not show a delayed onset of symptoms. It describes the existence of symptoms that got worse over time.) An August 2021 VA medical opinion concluded that current disability was unrelated to the 1977 motor vehicle accident. Noting post service complaints beginning in 2012, and the presence of mild degenerative desiccated disc and spondylosis diagnosed in 2014, she concluded the current condition is from age and wear and tear over time. Although these opinions do not acknowledge precisely the first post service record of back complaints, or the earliest post service report of lumbar spine X-ray images, the difference by only a few years in the overall context of the record cannot be reasonably seen to eliminate the probative value of the opinions. Clearly, they conclude there is no nexus between the disability seen decades after service and service, where in-service complaints are not chronic, there is an examination that reveals normal findings after the in-service injury, and then many years pass before further complaints and the present disability is discovered. Moreover, there is no medical opinion of record that supports the contention that the Veteran's current disability is linked with service. Thus, the Board finds the greater weight of the evidence is against the claim. In reaching this conclusion, the Board does not consider credible any contention the Veteran experienced chronic back pain since service. This is because of the normal findings on examination in September 1980, and the absence of complaints for many years after entering the VA medical treatment system in 2001. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.