Citation Nr: 21009729 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-08 272 DATE: February 23, 2021 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is denied. Entitlement to service connection for meniscal tear, osteoarthritis, and chondromalacia of the right knee is denied. Entitlement to service connection for meniscal tear and osteoarthritis of left knee is denied. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the thoracolumbar spine did not manifest in service and is not attributable to service. Arthritis did not manifest within one year following service. 2. The Veteran’s meniscal tear, osteoarthritis, and chondromalacia of the right knee did not manifest in service and is not attributable to service. Arthritis did not manifest within one year following service. 3. The Veteran’s meniscal tear and osteoarthritis of left knee did not manifest in service and is not attributable to service. Arthritis did not manifest within one year following service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the thoracolumbar spine low back condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for meniscal tear, osteoarthritis, and chondromalacia of the right knee are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for meniscal tear and osteoarthritis of the left knee are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of August 2012 and February 2015. In April 2017, the Veteran and his wife, R.C., testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in December 2017 and July 2019. Service Connection Service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires a present disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Secondary service connection generally requires a current disability, a service-connected disability, and a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the chronic disease is shown as such during service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331. The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for low back disorder. A rating decision of February 2015 denied service connection for low back condition. The Veteran filed a NOD in March 2015 and VA Form 9 in June 2015. Degenerative arthritis of the thoracolumbar spine was diagnosed in a May 2018 VA examination report for the back. The Veteran alleges direct and secondary theories of service connection. He attributes his current back disorder to a back injury caused by a fall during service. It is also maintained that his disorders of the left knee and/or right knee, for which he also seeks service connection, caused or aggravated his back disorder. The separation examination of July 1968 found the Veteran to have a normal spine and musculoskeletal system on clinical examination, and he denied having any past or current symptoms of swollen or painful joints. The service treatment records do not note any back injury or symptoms. The Veteran testified before the Board that, during service in Vietnam, he fell from “some kind of tower,” landed on his back, and was sore afterwards. He stated that he was taken to a hospital at the time and was told that he was okay. When asked by the undersigned whether he continued to have back pains from that point forward, he replied, “It’s hard to say. Probably, yes.” No medical opinion of record relates the Veteran’s current back disorder to a disease or injury of service, including his account of the in-service fall and back injury. In the opinion of the May 2018 VA examiner, the current back disorder is less likely than not due to service. She explained that the service treatment records cite no back complaints or treatment and that the separation examination found no back abnormality, noted no back complaints, and contained a specific denial by the Veteran. Furthermore, the examiner observed that the mild degenerative disease of the lumbar spine first shown by an x-ray of March 1999 is a not uncommon finding for a 57-year-old male. The Veteran denied back pain for a VA Agent Orange examination of April 2011, and he was equivocal in testifying before the Board as to any recurrent back symptoms since service. The examiner also cited the fact that a private treatment record of August 2005 notes a job-related back injury in 1986, which the Veteran failed to disclose to the Board when testifying as to the history of his back symptoms from service to the present. In the opinion of the May 2018 VA examiner, the Veteran’s current back disorder is likely “multifactoral to include his prior job-related injury and natural aging process.” It was noted that, by the Veteran’s account, he worked for 9 years following service in a physically demanding job as a glass factory laborer on the machine floor. He then worked for 25 years as a general laborer in construction and home building, which was also physically demanding and required ascending and descending ladders while carrying heavy lumber and shingles. He retired from construction work in 2000. A negative nexus opinion was offered by a January 2020 VA examiner as well, who attributed the current lumbar spine disorder not to service but to the Veteran’ s having compensated with his back for the right knee injury with meniscal tear that occurred following service in 1988. The main rationale was that nothing in the service treatment records documents the in-service fall and injury alleged by the Veteran, and that the Veteran offered a varied history of the event and aftermath, with numerous discrepancies that call into question his credibility. Specifically, in testimony before the Board, he estimated that that he fell some 20-25 feet from “some kind of tower,” with no mention of loss of consciousness. Upon current examination, however, he stated that he fell “off a building 10 to 15 feet high” and that he was knocked out by the fall. Again noted was the discrepancy between the Veteran’s denial of a post-service back injury before the VA examiner and his written report in August 2005 that he had had a “back injury job related” in 1986. The examiner further cited the Veteran’s allegation before her that doctors in Pittsburgh and Clarksburg “wanted to cut me open down my spinal cord . . . to do operations on me,” while the VA treatment records for Pittsburgh and Clarksburg show conservative medical management of the back disorder and no recommendation of surgery. With respect to direct service connection, the Board determines that the Veteran has a current disorder and that he injured his back when he fell during service as alleged. Service connection may not be presumed in this case for arthritis as a chronic disability, because the preponderance of the evidence is against finding that arthritis symptoms manifested during service or within a year of service separation. The preponderance of the evidence is against finding that the current disorder is related to the in-service fall. No medical opinion relates the two, and the VA examiners offer adequate rationales for their negative nexus opinions. The Veteran, as a layperson, is not competent to relate his back disorder to a disease or injury of service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). He is competent to report experienced symptoms during and following service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board does not consider the lay testimony as to recurrent symptoms to be credible based on inconsistent reporting and inconsistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, but the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The inconsistencies noted by the VA examiners tend to undermine the Veteran’s credibility and need not be reiterated. The Board further notes that the Veteran stated to the May 2018 examiner that he could not remember whether he was taken anywhere for medical care after the in-service fall, while he testified before the Board that he was taken to a hospital and told that he was okay. He also told the May 2018 VA examiner that his back did not bother him until he had been out of the service a few years. The Board acknowledges the Veteran’s allegation, in a statement of May 2012, that he marked “OK” to all questions at the separation examination because a sergeant told the soldiers being examined for separation that anyone who did not mark “OK” as to all form questions would be held for an additional two weeks. This still reflects adversely on the Veteran’s overall credibility, because it would be an admission that he made a false representation as to his health for perceived self-interest. With respect to secondary service connection, the preponderance of the evidence is against finding that the Veteran’s current back disorder is caused or aggravated by a service-connected disability. The Veteran maintained at the Board hearing that his right knee disorder, for which he also claims service connection, caused his back disorder. The January 2020 VA examiner attributed the current lumbar spine disorder to the Veteran’s right knee disorder, but the right knee is not service-connected. As explained in the sections below, service connection will be denied for the claimed disorders of the left knee and right knee. The VA examiner also determined that the Veteran’s service-connected disabilities of hearing loss, tinnitus, kidney stones, diabetes, and left shoulder degenerative joint disease with rotator cuff tendonitis did not cause or aggravate the back disorder, because there is no etiological or anatomical connection between these conditions and the lower back. The Veteran, as a layperson, is not competent to determine that his left or right knee disorder, or any service-connection disability, causes or aggravates his back disorder. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). 2. Entitlement to service connection for a right knee disorder. A rating decision of August 2012 denied entitlement to service connection for right knee injury on the grounds that new and material evidence had not been submitted since the last final denial of the claim in September 2006. The Veteran appealed by filing a notice of disagreement in October 2012 and VA Form 9 of January 2015. By an order of April 2017, the Board reopened the claim on the basis that new and material evidence had been submitted since the last prior final denial of the claim in January 2012. The claim was remanded by the Board for the scheduling of a VA medical examination. The Veteran alleges, in history provided to a May 2018 VA examiner, and in testimony before the Board in April 2017, that he injured his right knee during basic training in 1966 when he jumped repeatedly from a platform into a “belly slam” and crawled 40 feet. He states that he hobbled for months thereafter, that an Army doctor showed him an x-ray of his fractured right kneecap, and that his right knee continued to hurt intermittently throughout service to the present. His wife offered corroborating testimony at the Board hearing as to her observance of his right knee symptoms during service and that he told her at that time that a doctor had diagnosed a fractured right knee. The Veteran has a current right knee disorder. A clinician who conducted the VA examination for the knees in January 2020 diagnosed meniscal tear and joint osteoarthritis of both knees and chondromalacia of the right knee only. The Veteran is competent and credible in his account of the training injury to his right knee, and the fact of an in-service injury to the right knee is established. The preponderance of the evidence is against finding, however, that it was a fracture of the right knee. Service treatment records (STRs) of September 1966 note right knee pain, reported difficulty with both knees for the past ten years, swelling, tenderness, and pain. The x-rays were “neg for fx [fracture].” The x-rays were noted to be of “poor quality,” and new x-rays were to be ordered to rule out a stress fracture. An entry of October 1966 notes that the Veteran had continued pain in the right knee. An entry of February 1967 notes a right knee x-ray, “hx of fx [fracture] knee cap – Oct ’66 – no results of previous x-rays,” and “Report: Right knee negative.” (Emphasis added.) STRs of April 1967 note continued complaints of relating to the right knee. For the separation examination of July 1968, the Veteran was found to have a normal musculoskeletal system and lower extremities. He reported no knee symptoms and specifically denied having any past or current trick or locked knee, or swollen or painful joints. The Veteran alleges that an Army doctor showed him an x-ray in October 1966 that, according to the doctor, showed a break across the right kneecap. The doctor allegedly told him that he would be released from the Army if he, the doctor, signed a paper. The Veteran testified at a VA regional office hearing in July 2014 that he believes that the doctor threw away the x-ray report in order to allow the Veteran to stay in the Army. Yet the Veteran also told the January 2020 examiner that “it’s all on file” and that “finally someone found the paperwork . . . after 40 or 50 years.” The Board determines that the STRs document an injured right knee and not a fracture. The Veteran is competent to report a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds him not to be credible on this point, however, when his recollection of the event is weighed against the contemporaneous STR entries indicating no fracture and the normal finding at service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board places greater probative value on the contemporaneous evidence over the Veteran's subsequent reports of medical history. Not only may the Veteran's memory have dimmed with time but the more recent reports were advanced when there was a chance for pecuniary gain. The claim fails as to the third Shedden element. The preponderance of the evidence is against finding that the current right disorder is related to the in-service injury. There is no medical opinion of record that finds such a nexus to be at least as likely as not. The January 2020 VA examiner offered a negative nexus opinion with a detailed rationale based on the following considerations. First, record evidence cited by the examiner raised doubt as to the history provided by the Veteran as to a fractured kneecap. The STRs do not diagnose such a fracture, contrary to his allegation. The VA examiner also noted that the Veteran’s report in 1967 of a “giving out” of the right knee would not be consistent with a patella fracture or a meniscal tear. The fact that the Veteran remained in service until July 1968 and did not seek further treatment for the knee during service suggested to the examiner that the 1966 and 1967 right knee injury resolved. The examiner also cited, by way of a rationale, record evidence of a work-related knee injury in July 1988 and the Veteran’s denial at that time of any history of injury or disease of the right knee. Later, for a VA examination of November 1991 for the knees, he failed to disclose the 1988 work injury and subsequent surgery to the right knee. Private treatment records document a July 1988 diagnosis of acute positive tear of medial meniscus and chondromalacia of medial femoral condyle and tibial plateau of right knee, following a work injury that occurred in July 1988. An arthroscopic partial medial meniscectomy and shaving of medial femoral condyle of the right knee was performed. The January 2020 VA examiner pointed out that the surgery report of 1988 clearly documents that the tear was acute. The VA examiner’s rationale also noted that, for an August 2011 VA examination for the knees, the Veteran stated that he was diagnosed with a fractured kneecap in the military but that he did not know how he injured the knee. The VA examiner also noted that, upon examination in January 2020, the Veteran first denied ever having a surgery on his knee but then acknowledged that he had had arthroscopic surgery on the right knee. The January 2020 VA examiner concluded, upon examination of the Veteran and a review of the entire record, that the in-service, right knee condition resolved and that there was no right knee condition until after the 1988 work injury. As a layperson, the Veteran is competent to report his experienced knee symptoms during and following service, and the Veteran’s wife is similarly competent to report what she has seen and heard with respect to the claimed disorder over the years. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board does not find the Veteran to be credible in his report of recurrent symptoms since an in-service onset, however, because he has not been consistent in his reporting, as outlined above in the discussion of the negative nexus opinion of the January 2020 VA examiner. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995). In this case, the well-reasoned and supported negative nexus opinion of the VA examiner is more probative than the lay testimony. The examiner considered the Veteran’s competent report of symptoms and provided an adequate rationale for her determination that a link to service is unlikely. The Veteran was found to have normal knees at service separation, and he denied having or ever having had knee symptoms at that time. Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In a statement of May 2012, the Veteran maintains that he characterized his right knee as normal at separation only because a sergeant told the soldiers being examined for separation that anyone who did not mark “OK” as to all form questions would be held for two weeks. This still reflects adversely on the Veteran’s overall credibility, because it would be an admission that he made a false representation as to his health for perceived self-interest. The preponderance of the evidence is against finding that the Veteran’s osteoarthritis of the right knee manifested during service or within one year of service separation. Accordingly, service connection may not be presumed for the listed chronic disease of arthritis. 38 C.F.R. §§ 3.307, 3.309. The Veteran does not contend, and no evidence suggests, that his right knee disorder was caused or aggravated by a service-connected disability. Therefore, service connection cannot be granted on the basis that the Veteran’s service- connected disabilities of diabetes mellitus type 2, nephrolithiasis (kidney stones) with chronic renal disease, left shoulder, bilateral hearing loss, or tinnitus caused or aggravated his right knee disorder. 38 C.F.R. § 3.310; see also Wallin v. West, 11 Vet. App. 509 (1998). 3. Entitlement to service connection for a left knee disorder. A rating decision of February 2015 denied service connection for a left knee disorder. The Veteran appealed by filing a NOD in March 2015 and VA Form 9 in June 2015. The service treatment records note no left knee symptoms or treatment. For the separation examination of July 1968, the Veteran was found to have a normal musculoskeletal system and lower extremities upon clinical examination. He reported no knee symptoms and specifically denied having any past or current trick or locked knee, or swollen or painful joints. When testifying before the Board in April 2017, and in a statement of July 2014, the Veteran alleges that his current left knee disorder is caused by the right knee disorder for which service connection is also sought. He testified that he does not recall injuring his left knee during service. The only contention, therefore, is service connection based on a theory of secondary causation or aggravation. 38 C.F.R. § 3.310. A January 2020 VA examination for the knees diagnosed meniscal tear and joint osteoarthritis of both knees and chondromalacia of the right knee only. As explained above, service connection will be denied with respect to the claimed right knee disorder. The Veteran has not alleged that any disorder for which he is currently service connected caused or aggravated his left knee disorder, and no competent evidence of record suggests such causation or aggravation. The January 2020 VA examiner offered a negative nexus opinion. She determined initially that there is no subjective or objective evidence of a left knee condition, injury, event or disease during service. She noted that, by the veteran's own account, he did not have problems with his left knee until several years after he left service. According to the examiner, no evidence in the Veteran’s history, STRs, treatment records, or examination findings suggests that the left knee arthritis diagnosed in 1999 was caused by his service between 1966 and 1968. The VA examiner attributed the Veteran's left knee disorder to a 1988 post-service, work injury of the right knee, a meniscal tear that required surgery. She determined that the Veteran’s compensating for the right-knee injury lead to the early development of his arthritis in the opposite knee. The VA examiner also determined that the Veteran’s service-connected disabilities of hearing loss, tinnitus, kidney stones, diabetes, and left shoulder degenerative joint disease with rotator cuff tendonitis did not cause or aggravate the left knee disorder, because there is no etiological or anatomical connection between these conditions and the left knee. None of those service-connected disabilities causes or aggravates arthritis in the right knee beyond its natural progression. The preponderance of the probative evidence is against finding that the Veteran’s osteoarthritis of the left knee manifested during service or within one year of service separation. Accordingly, service connection may not be presumed for the listed chronic disease of arthritis. 38 C.F.R. §§ 3.307, 3.309. Because the Veteran is not service-connected for the right knee, secondary service connection for the left knee is not warranted. For the same reason, to the extent that the Veteran may argue that his back disorder causes or aggravates his left knee disorder, service connection is not warranted. The Veteran, as a layperson, is competent to report his experienced symptoms of the left knee. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not competent to associate his left knee disorder with his disorders of the right knee or low back or with any of his service-connected disabilities in terms of either causation or aggravation. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). With the preponderance of the evidence being against finding entitlement to service connection on either a direct or secondary basis, the claim must be denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.