Citation Nr: 21009188 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 20-17 255 DATE: February 19, 2021 ORDER Service connection for low back disability is denied. Service connection for right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s current low back disability is mild to moderate lumbar spine degenerative disc changes with osteoarthritis which was not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation, and is unrelated to service. 2. The Veteran’s current right knee disability is primary arthritis which was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to November 1967, with service in the Republic of Vietnam from November 1966 to November 1967, and with his military occupational specialty being Combat Engineer. The Board thanks him for his service. He appeals from October 2018 rating decisions denying the benefits sought, based on claims treated as being filed in June 2018. He withdrew a request for a Board hearing in April 2020, and the Board remanded the appeal to the agency of original jurisdiction in August 2020. 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current low back disability, which the evidence including VA medical records from July 2019 indicates is mild to moderate degenerative disc changes along with osteoarthritis of the facet joints in the lumbar spine; or for the Veteran's current right knee disability, which the evidence including an October 2017 private medical record indicates is right knee primary osteoarthritis. The preponderance of the evidence indicates that these were not manifest in service, or, for arthritis, to a degree of 10 percent within 1 year of separation, and that they are unrelated to service. Available service treatment records are silent for reference to low back and/or right knee problems. This includes the Veteran's November 1967 report of medical history, in which he denied having or having had knee trouble and recurrent back pain, and his November 1967 service separation examination report, which shows that his spine and right knee were clinically normal at that time. Additionally, no medical records pre-dating October 2017 have been submitted showing right knee disability, and no medical records pre-dating 2018 have been submitted showing low back disability. The first mention of right knee disability is when the Veteran was treated privately in October 2017 for right knee primary osteoarthritis. The first mention of low back disability is when the Veteran was treated for back pain in June 2018, and in July 2019, when the Veteran’s back condition was confirmed by diagnostic imaging. Additionally, a VA examiner in October 2020 opined that the Veteran's current low back and right knee disabilities were less likely than not incurred in or aggravated by service injuries, events, or illnesses. The rationales were that as per service treatment records, the Veteran was not diagnosed with any back or knee conditions; and he had no osseous or ligament tears during his service. An examination performed in November 1967 showed a normal spine and a normal right knee joint. He is currently diagnosed with degenerative changes of the back and knee which are less likely to be secondary to complaints of pain in the 1960s, and instead likely to be secondary to the Veteran's natural aging process. While the Veteran contends, including through August 2018 and April 2019 statements, that the disabilities at issue began in or are related to service, with knee and back problems starting while he was in service working as a bridge builder in Vietnam, this is not supported but is instead contradicted by the information in the service treatment records, by the absence of records showing disability for years post-service, and by the opinions of the VA medical examiner in 2020. Moreover, while the Veteran is competent to relate his symptoms and experiences, he is not competent, as a layperson, to supply his own nexus opinion with respect to the disabilities at issue. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board affords greater probative weight to the opinion of the VA medical examiner in this case, as that opinion was based on an in-person examination of the Veteran and a thorough review of the medical file, and is in general accord with the objective medical evidence in this case. The preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.