Citation Nr: 21011378 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-09 938 DATE: March 1, 2021 ORDER Entitlement to service connection for a low back disorder. Entitlement to service connection for a left knee disorder. FINDINGS OF FACT 1. The Veteran’s low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1974 to March 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. After the Veteran’s death in April 2015, the appellant requested in May 2015 that she be substituted for the Veteran in her capacity as the Veteran’s surviving spouse. 38 U.S.C.§ 5121A (2012) (providing that a surviving spouse may be substituted in place of a Veteran who has died on or after October 10, 2008). The Board may proceed to adjudicate this claim on this basis because the RO found the appellant to be the proper substitute in December 2015. The appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing in January 2018. A copy of the transcript of the hearing has been associated with the record. This matter was remanded for additional development in April 2018. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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 disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. 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 all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a low back disorder The appellant contends that the Veteran’s back disability was incurred during active service, specifically caused by a jeep accident where the vehicle rolled over. The Board notes that prior to the Veteran’s death, he submitted photographs of himself standing next to a damaged jeep. At the Board hearing, the appellant testified that when she met the Veteran in 1994, he had back problems and he had told her he had them for a while. An October 1974 service treatment record shows that the Veteran was treated for lower back pain. After evaluation, the Veteran was diagnosed with mechanical lower back pain. A January 1976 separation examination report shows that the Veteran was clinically assessed with a normal spine. Additionally, the Veteran self-reported “no” for recurrent back pain. A March 2007 VA treatment record shows that the Veteran was noted to have a history of low back pain. A July 2010 VA treatment record shows that the Veteran was assessed with back pain. In an August 2020 VA record, the Veteran reported low back pain of decades. The Veteran stated he’d had pain since his jeep accident. The clinician noted low back pain consistent with effects of initial trauma and subsequent overuse. A December 2013 VA back examination report shows that the Veteran was diagnosed with a lumbar spine strain. The Veteran reported a jeep accident during service which lead to chronic and constant back pain. After a review of the evidence of the record, the examiner opined that it was less likely than not that the current back condition was related to active service to include an in-service back injury. The examiner remarked that there was no evidence of the stated accident or a traumatic back condition during active service and that service treatment records document only an acute back complaint with no history of trauma in October 1974. Additionally, the examiner noted that the Veteran's separation evaluation was negative for a back disability and the Veteran self-reported no back injuries during active service. An April 2020 VA back examination report shows that after a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran’s back condition was related to active service to include a motor vehicle accident that occurred in 1975. The examiner noted that the Veteran’s x-rays in 2013 were essentially normal. The examiner noted the Veteran’s reports of back pain after a jeep accident during service. The examiner noted that it was not until 25 years after service in 2004 to 2005 when he started reporting back pain but was never seen for his back condition prior to that time. The examiner noted that mechanical lumbar strains were very common and healed on their own often. In this case, the examiner noted that the etiology of this mechanical back strain in the lumbar spine was not consistent with a Jeep rollover accident in the service. The reason that the etiology is not consistent with this is he was not seen for this accident he was not seen for any chronic problems concerning the back in-service. The examiner noted that the Veteran’s mechanical lumbar spine strain was less likely than not related to the service specifically with a Jeep rollover accident as patient denied having problems the back when getting out of the service and was not seen for his back for the next 25 years and therefore no chronicity was ever found a lumbar spine disability. Therefore, the examiner determined that the most likely etiology of this patient's back pain was due to his weight at 282 pounds in 2008 with a BMI of 42 and this size and weight does put a large amount stress on the lumbar spine and is most consistent with the cause of his lumbar spine complaints. The photo of the patient's Jeep with him standing in front of it was noted by the examiner to not indicate that the person standing with a Jeep had any abnormalities or injuries that were apparent. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The 2013 VA examination notes a diagnosis of lumbar strain. Second, the Board finds that there was an in-service injury but not disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An October 1974 service treatment record shows that the Veteran was treated for lower back pain. After evaluation, the Veteran was diagnosed with mechanical lower back pain. Third, the Board finds that the evidence of record does not support a finding that the lumbar strain is related to active service. Here, the first notation of back pain in the medical records was in 2007, although a history of back pain was noted. Even if there was back pain in the early 1990s, as asserted by the appellant, the multi-year gap in time weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Additionally, the Board assigns probative value to the 2013 and 2020 VA etiological opinions as they were provided upon a review of the claims file, including the Veteran’s la y statements of in-service jeep accident, and provided supporting explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Veteran noted in a 2010 medical record that he had had back pain for decades and pain since his in-service accident. The appellant asserts he had problems since the early 1990s. The Board finds the appellant’s statements competent and credible. However, the Board finds the Veteran’s statements of symptoms since the in-service accident ot be competent but not credible, as they are belied by the evidence of record, to include the service discharge examination in which he denied back pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left knee disorder The appellant contends that the Veteran’s left knee disability was incurred during active service, specifically caused by a jeep accident where the vehicle rolled over. The Board notes that prior to the Veteran’s death, he submitted photographs of himself standing next to a damaged jeep. A review of the Veteran’s service treatment records show no report or diagnosis of a left knee disability and on his January 1976 separation examination he self-reported “no” trick or locked knee. A May 2008 VA treatment record shows that the Veteran was assessed with left pain. A July 2010 VA treatment record shows that the Veteran was assessed with knee pain. A September 2010 correspondence submitted by the Veteran reported that he injured his knee when his jeep was in a motor vehicle accident during active service. The Veteran submitted photograph of himself standing next to a damaged jeep. An April 2020 VA examination reports shows that after a review of the evidence of record, the examiner opined that it was less likely than not that a knee condition was related to active service to include as due to the reported jeep accident. The examiner noted that a review of the Veteran’s service treatment records showed no treatments or self-reports for left knee pain. The Veteran was noted to first review knee pain in 2005 and knee x-rays in July 2004 showed medial compartment arthritis which was a common finding for overweight people as the knees carried between 5 and 10 times his body weight and the Veteran’s history shows that he was 282 pounds. The examiner noted that there was no evidence to indicate that the Veteran was injured in the service with a rollover accident. The examiner noted that Veteran submitted pictures consistent with a possible damage to Jeep with a rollover and the Veteran was standing in front of the Jeep standing on his left leg with his right leg up with no apparent injuries. Additionally, the examiner noted that the Veteran documented on exit exam no knee injuries and was never seen for his knees until proximally 2002-2004 and at that time were the knee complaints were consistent with medial compartment arthritis. Therefore, the etiology of his knee arthritis is consistent with his weight and less likely than not related to any complaints of knee pain or jeep accidents in 1975. Service treatment records were noted not to be consistent with any complaints of knee pain and have no chronicity seen. After leaving the examiner noted that there was no evidence of chronicity of the left knee for greater than 25 years after separation from service. Initially, the Board notes that the Veteran has a current diagnosis of a left knee disability. A review of the service treatment records shows no treatments or self-reports of knee pain. Significantly, however, the preponderance of the evidence weighs against finding that this left knee disability began in service or is otherwise related to an in-service injury, event, or disease. Post service, VA and private treatment records shows that the Veteran was not diagnosed with a left knee condition until many years after separation from service. While the Veteran is competent to report having experienced symptoms of left knee pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current left knee disability. The issue is medically complex, as it requires knowledge of the musculoskeletal system and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the April 2020 VA examiner opined that the Veteran's left knee disability was not at least as likely as not related to an in-service injury, event, or disease to include the report jeep accident. The rationale was that there was no evidence of a knee condition while in service, nor an injury or event such as to cause the current left knee condition. The examiner noted that the Veteran submitted a picture of himself standing in front of a jeep, and was standing of his left leg with his right leg up on the jeep, and from the picture no injury was apparent. The examiner also relied upon the gap of time between separation from service and when the Veteran first sought treatment to find no nexus opinion. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran noted in a 2010 medical record that he had had knee pain for decades and pain since his in-service accident. The appellant asserts he had problems since the early 1990s. The Board finds the appellant’s statements competent and credible. However, the Board finds the Veteran’s statements of symptoms since the in-service accident to be competent but not credible, as they are belied by the evidence of record, to include the service discharge examination in which he denied knee pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, service connection is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.