Citation Nr: 21023420 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 965A DATE: April 20, 2021 ORDER Service connection for lumbar spine strain is denied. Service connection for left knee strain is denied. FINDINGS OF FACT 1. The Veteran’s low back disorder 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 disorder 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 lumbar strain 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 left knee strain 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 June 1974 to June 1977. In an October 2018 decision, the Board adjudicated another issue then on appeal and remanded the issues addressed herein for further evidentiary development. The record reflects substantial compliance with those remand requests. Dyment v. West, 13 Vet. App. 141 (1999). 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; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease does not need to be diagnosed within the presumption 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. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Lumbar spine strain The Veteran asserts that his lumbar spine strain is due to an in-service injury. Service treatment records show that on September 30, 1975 the Veteran reported low back pain for the past day. Examination revealed pain on the left lower side of the back, and a diagnosis of a strain was given. On October 7, 1975, he reported injuring his back when his car was hit from behind two days earlier. Examination revealed back spasms. On October 21, 1975 he stated that physical therapy helped and he returned to duty but while lifting heavy materials on the rations truck, he had pain again. Examination revealed slight tenderness on the left lower side of the back but no spasms, and a diagnosis of a slight muscle strain of the left lumbar spine was given. There are no further complaints of low back pain, including at the May 1977 separation examination, and evaluation of the spine at that time was normal. Thus, the service treatment records indicate that the documented injury was acute and resolved prior to discharge from service. In any event, the evidence does not show that the in-service injury resulted in a chronic disability of the back. There is also no evidence of any back problems proximate to service. The first evidence of a low back disorder is in a September 2013 VA medical record, which shows complaints of low back pain in the morning that improved throughout the day and a diagnosis of chronic low back pain. However, there is no indication that the Veteran had such problems since service. In any event, there is no objective evidence of low back problems within a year of discharge from service. In June 1977, within one month of separation from service, the Veteran filed a VA Form 21-526e, “Veteran’s Application for Compensation or Pension at Separation from Service,” listing back injuries. However, when asked for missing information on the form later that month, he did not reply. He also did not submit any evidence of a current low back disability. Thus, that claim was deemed abandoned. Unfortunately, the Veteran did not pursue that claim, and, as the record stands, there remains no objective evidence of a low back disability at that time. At an August 2019 examination, the Veteran reported a history of the onset of low back pain in service in 1976 or 1977 after a motor vehicle accident with some pain initially that was treated by service personnel. Such history further indicates that the in-service low back injury resolved and the current lumbar spine strain began sometime after separation from service. Moreover, a VA examiner has opined that the Veteran’s current low back disorder is not related to active service, to include the 1975 injuries. In a July 2020 medical opinion, a VA examiner acknowledged the three entries in the service treatment records and stated that there are no further records pertaining to low back pain in service and that the Veteran continued to serve two more years without evidence of a chronic low back disorder. The examiner noted that the separation examination is negative for back complaints and that there is no evidence of back complaints until 2014. [While VA medical records actually show complaints of back pain in 2013, the Board finds that this error in reciting the evidence does not diminish the probative value of the examiner’s opinion. Hayes v. Brown, 9 Vet. App. 67 (1996).] The examiner stated that the two separate events in service appear to have been acute and self-limited with no residuals (as evidenced by active duty for two years post injury) and that there is no evidence of a low back disorder at, or proximate to, service separation, or for more than 35 years after discharge. The examiner concluded that the Veteran’s low back strain is not due to the two acute, self-limited events in service. August 2019 X rays showing a normal lumbar spine support this conclusion. The examiner opined that the Veteran’s lumbar spine strain was not incurred in, or caused by, the in-service injuries. A lay person is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms to over 35 years after separation from active service, and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his low back disability. Moreover, at the August 2019 VA examination, the Veteran reported that after separation from service he worked in manufacturing for many years and then transitioned to health care at a psychiatric hospital. Such work history raises the possibility of an intercurrent injury. Indeed, at October 2014 VA examinations, the Veteran reported retiring in 2012 from his last job as a nurse’s aide due to a torn right Achille’s tendon, which suggests a physically demanding job. The Board notes a June 2016 letter from the Veteran’s brother recalling that the Veteran has complained of pain in his back since separation from service. While the Board appreciates the brother’s statement, it is a recollection of events that happened almost 40 years earlier and is not supported by the objective evidence of record, including any from that time period. As such, the Board finds the brother’s statement to be of little probative value as to whether the Veteran actually had low back pain proximate to, and since, service. Hayes, 9 Vet. App. 67. Moreover, the Veteran’s work history of physically demanding jobs could have been the basis of his complaints which the brother is recalling. Given the above, the Board finds that the Veteran’s low back disorder 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. Accordingly, the Board concludes that service connection for lumbar spine strain is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left knee strain The Veteran asserts that his left knee strain is due to an in-service injury. Service treatment records show that on October 30, 1975 he reported injuring his left knee playing basketball two weeks earlier and reinjuring it on October 29, 1975. Examination revealed no significant findings, and a diagnosis of possible muscle strain was given. There are no further complaints of left knee pain, including at the May 1977 separation examination, and evaluation of the left knee at that time was normal. Thus, the service treatment records indicate that the documented injury was acute and resolved prior to discharge from service, with no resulting chronic left knee disability. There is also no evidence of any left knee problems proximate to service. The first evidence of a knee disorder is in a March 2013 VA medical record, but that record shows complaints of right knee pain. A June 2016 VA medical record is the first to show complaints of left knee pain, reported as bilateral knee pain. An August 2017 VA medical record shows complaints of bilateral knee pain and right Achille’s pain with a history of surgical repair of a ruptured Achille’s tendon three to four years ago with the subsequent development of a mildly compromised gait pattern. Such history suggests that the left knee pain began after the right Achille’s injury and right knee disorder. There is no indication that the Veteran had left knee problems since service. In any event, there is no objective evidence of left knee problems within a year of discharge from service. At an August 2019 examination, the Veteran reported a history of the onset of left knee pain in service between 1975 and 1977 and that his knees have been hurting for the past 10 years. Such history further indicates that the in-service left knee injury resolved and the current left knee strain began after separation from service. Moreover, a VA examiner has opined that the Veteran’s current left knee disorder is not related to active service, to include the 1975 injury. In a July 2020 medical opinion, an examiner noted the in-service injury but stated that there is no further evidence of a left knee disorder in service even though the Veteran served for two years thereafter. The examiner noted that the separation examination is negative for an ongoing left knee disorder and that there is no evidence of a left knee disorder proximate to service, with no evidence of knee complaints until 2013. The examiner stated that the injury in service appears to have been acute and self-limited with no evidence of an ongoing disorder at separation from service or shortly thereafter. The examiner stated that there is no evidence of left knee complaints for more than 35 years after discharge. The examiner concluded that the Veteran’s left knee strain is not due to the in-service injury but represents a new onset condition in 2013. While the Board appreciates the Veteran’s reported history and chronicity of symptomatology, the record dates the onset of symptoms to over 35 years after separation from active service, and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his left knee disability. The Board reiterates that the Veteran’s work history raises the possibility of an intercurrent injury. The Board has considered the June 2016 letter from the Veteran’s brother recalling that the Veteran has complained of left knee pain since separation from service. While the Board appreciates the brother’s statement, again, it is a recollection of events that happened almost 40 years earlier and is not supported by the objective evidence of record, including any from that time period. As such, the Board finds the brother’s statement to be of little probative value as to whether the Veteran actually had left knee pain proximate to and since service. Hayes, 9 Vet. App. 67. The Board again observes that the Veteran’s work history of physically demanding jobs could have been the basis of his complaints which the brother is recalling. Given the above, the Board finds that the Veteran’s left knee strain 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. Accordingly, the Board concludes that service connection for left knee strain is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.