Citation Nr: 21014992 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 18-44 916 DATE: March 16, 2021 ORDER Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a January 2021 letter, the Veteran was advised that he was entitled to an additional Board hearing as the VLJ who conducted the hearing was no longer employed by the Board. 38 U.S.C. § 7102; 38 C.F.R. § 20.707. The Veteran has not requested an additional hearing. In August 2019, the Board remanded the issues on appeal for further development. There has been substantial compliance with remand directives for the issue adjudicated below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the diseases explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provision of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The list of chronic diseases includes arthritis. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 1. Entitlement to service connection for a back disability is denied. The Veteran contends at his February 2019 Board hearing that he began experiencing back pain shortly after starting basic training. The Veteran specifically claims that his in-service back injury caused him to delay graduating from basic training for an additional six months. The Veteran also asserts that his back problem is a result of him performing high-intensity exercises during basic training while being 40 pounds overweight. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar degenerative disc disease with stenosis and sciatica, and evidence shows an in-service complaint of back pain, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of lumbar degenerative disc disease with stenosis and sciatica (back disability) began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records do not reflect a diagnosed back condition during the pre-induction or induction physical examinations. A treatment note dated in August 1966 indicates that the Veteran was seen for a back problem “caused by previous injury playing football… 9 years ago.” However, there was “no trouble until [the Veteran] began basic [training].” The treatment note indicated that the Veteran had back pain; no radiation; and full range of motion. There was localized pain to the mid lumbar area and tenderness in the left lower lumbar area. The note further indicated that an X-ray of the lumbar spine was negative. His August 1967 separation examination from military service does not contain any report of a back pain or condition. In his Report of Medical History, taken concurrently with his separation examination, the Veteran denied recurrent back pain. Private treatment records show the Veteran was diagnosed with lumbar radiculopathy, lumbar spondylosis, spinal stenosis, degenerative disc disease in 2017, 50 years after his separation from service. A December 2010 treatment note demonstrates that the Veteran did not have a back condition or complain of one. The note indicates that the Veteran’s back was symmetrical; had full active range of motion in all directions; no tenderness to palpation; and no costovertebral angle tenderness. The Veteran was scheduled for a VA examination in June 2018; however, the examination report indicates that he was a no-show and there was no explanation offered for his failure to appear. In April 2019 the Veteran submitted a positive nexus opinion from a private physician whose only form of identification was an illegible signature. The private physician opined that the Veteran’s lumbar spine degenerative disc disease was “as most likely caused by or a result of trauma experience in their military service.” The rationale said, “due to cumulative service-connected injuries and injuries suffered in basic training, [the Veteran] has suffered chronic pathology to the above listed body regions.” As this opinion was conclusory and not supported by a clear rationale, the Board found that it lacked probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, in August 2019, the Board requested a VA examination with opinion and rationale to determine the nexus and etiology of the Veteran’s back disability. Pursuant to the Board’s August 2019 remand, the Veteran was afforded a VA examination in February 2020. The VA examiner identified the Veteran’s diagnosis as lumbar degenerative disc disease with stenosis and sciatica. The Veteran described the onset of his lower back disability as beginning in service during basic training. He reported that he entered military service 40 to 50 pounds overweight and was overworked in basic training. He indicated that he experienced low back pain daily that worsened with standing, walking, bending, carrying, and lifting. He also indicated that his lower back “hurts more with increased sitting.” The VA examiner opined that it is less likely as not that the Veteran has a low back condition that incurred in or was caused by complaints during service. The rationale noted that the Veteran had no complaints of a back condition since his in-service treatment in 1966 until recent years. The examiner stated that it was “hard to state that the one complaint in service led to [the Veteran’s] current back problems,” but also considered medical studies. The examiner referenced medical articles from the American Academy of Orthopaedic Surgeons (AAOS) and Up to Date to explain how the Veteran’s age was relevant to his current condition. Specifically, the examiner noted that with persons above the age of even 40, 60 percent showed evidence of disc degeneration at one or more levels on MRI and that by age 60, evidence of disc degeneration was often considered a normal finding. The examiner’s opinion is probative, because it is based on an accurate medical history, physical examination, medical literature and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Board assigns no probative value to the April 2019 positive nexus opinion from the unknown private physician because opinion was conclusory and not supported by a clear rationale. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board acknowledges the Veteran’s contention that being overweight in service and high-intensity exercises therein caused his current back problem; however, he is not competent to make this determination. Additionally, VA treatment records do not support his assertion of such or that he had an on-going back problem since his discharge from service. While the Veteran is competent to report having experienced symptoms of low back pain after discharge, he is not competent to provide opine that his current back disabilities onset in service or are etiologically related to service. The issue is medically complex and the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the February 2020 VA examiner’s opinion. Service connection for the Veteran’s degenerative arthritis of the spine is not presumed. As discussed above, his back pain was not shown as chronic during service. An X-ray during service in 1966 was negative. Although he now reports having the back pain since service, the Veteran’s discharge Report of Medical History does not support this assertion; because recurrent back pain was affirmatively denied. Thus, the Veteran’s report of continuity of symptomatology is not deemed credible because it is in conflict with the contemporaneous evidence. Thus, service connection based on the provisions of chronicity and continuity of symptomatology is not warranted. See 38 C.F.R. § 3.303(b). Likewise, service connection for arthritis is not warranted because it was not shown to have manifested to a compensable degree within one year of his discharge from military service. See 38 C.F.R. § 3.307, 3.309. Given the foregoing, the Board finds the competent, credible, and probative evidence of record weighs against a finding of service connection. As such, service connection for a back disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Service connection is denied. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. The Veteran contends his left knee disability should be service-connected because he began experiencing left knee pain shortly after starting basic training. He asserted that his in-service left knee injuries caused him to delay graduating from basic training for an additional six months. He also asserts that his knee problems are a result of him performing high intensity exercises during basic training while being 40 pounds overweight. See February 2019 Board Hearing Transcript. While further delay is regrettable, the Board finds that a remand is necessary to further adjudicate the claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To that extent, the Board turns to the February 2020 VA examination report for the Veteran’s left knee disability. The examiner opined that it is less likely as not that the Veteran has a left knee condition that was incurred in or was caused service but did not provide an adequate rationale. The rationale reflects that the examiner incorrectly interpreted a notation in the Veteran’s service treatment record. Part of the examiner’s unfavorable opinion rested on the reasoning that the Veteran had left knee pain prior to service. The examiner specifically indicated that a 1964 orthopedic consultation states the Veteran had left knee pain for many years. Review of the December 1964 orthopedic consultation report in question shows the Veteran was evaluated for possible internal derangement of the left knee. The history showed that ‘for many years the Veteran had had occasional popping in the knee without associated pain.’ Significantly, on physical examination, there was no evidence of internal derangement or other abnormal findings. X-rays were negative and the Veteran was recommended for full military duty. The Board further observes that the Veteran denied any history of knee, bone, or joint problems on his August 1965 Report of Medical History. As the examiner appears to have relied, at least in part, on an inaccurate factual premise an addendum is needed. The Board observes that the service treatment records are negative for any left knee complaints or treatment during active duty. His separation examination showed his lower extremities were normal and the Veteran denied any knee symptoms on the Report of Medical History form that was completed at discharge. The post-service evidentiary record contains inconsistent statements regarding the onset and recurrence of the Veteran’s left knee pain. For instance, in a July 1993 statement the Veteran indicated that during basic training “there was no noticeable problem caused by the exercises.” He indicated the knee problems were not evident during service, only a shoulder problem was evident. He recalled that the only thing noticed at the time [during service] was damage to the skin on his kneecaps. In a February 1995 statement, the Veteran indicated that he noticed the onset of left knee pain during the latter part of his extended basic training but decided not to complain, including at separation, so as to avoid longer retention in military service. At the hearing before the undersigned, the Veteran testified that he first noticed left knee pain very soon after beginning basic training and that he went to sick call for treatment. Considering the inconsistency in the reported history regarding the onset of the left knee symptoms, and the contemporaneous evidence showing a lack of left knee complaints and treatment in service and an affirmative denial of knee symptoms at separation, the current assertion regarding the onset of left knee pain in service with continuity since discharge, is not credible. Nonetheless, an addendum opinion, which is based on an accurate reflection of the left knee at entrance, should be obtained on remand. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee disability is at least as likely as not related to his military service. The claims file, and a complete copy of the Remand must be reviewed. The Remand contains relevant information to be considered by the examiner. a) Is it at least as likely as not that the Veteran’s current left knee disability onset during active duty or is otherwise related to active duty? A rationale must be provided for the opinion. The examiner is advised that the December 1964 orthopedic consultation report in question states, ‘for many years the Veteran had had occasional popping in the knee without associated pain.’ [emphasis added]. The examiner is further advised that the current assertion of onset of left knee pain in service, with continuity since discharge, is not found credible. However, in providing the requested opinion, the examiner is to consider the Veteran’s description of his in-service activities during basic training (i.e. having to perform ‘high intensity’ exercises such as low crawling and deep knee bends while being at least 40 pounds overweight) as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported activities during basic training, and his symptoms after service, represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (Continued on the next page)   b) For the currently diagnosed left knee osteoarthritis, is it at least as likely as not that it (1) began during active service or, (2) manifested within one year after discharge from service? A rationale must be provided. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.