Citation Nr: 21028309 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-27 483 DATE: May 10, 2021 ORDER Entitlement to service connection for lumbar spine degenerative arthritis is granted. Entitlement to service connection for left knee degenerative arthritis is granted. Entitlement to service connection for a cervical spine disorder is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's lumbar spine degenerative arthritis is related to active service or events in service. 2. The evidence is at least in equipoise as to whether the Veteran's left knee degenerative arthritis is related to active service or events in service. 3. The preponderance of the evidence is against finding that a cervical spine disorder began during or is otherwise related to service; and there is no evidence of cervical spine arthritis manifested to a compensable degree within one year following discharge from active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, lumbar spine degenerative arthritis was incurred during active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, left knee degenerative arthritis was incurred during active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. A cervical spine disorder was not incurred during active service nor may cervical spine arthritis be presumed to have been incurred in service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to April 1971. He died in September 2020. The appellant is the Veteran's surviving spouse, who has been recognized by VA as the eligible substitute claimant in the current appeal. See 38 C.F.R. § 3.1010. In July 2019, the Board remanded the following issues for additional development: entitlement to service connection for left knee degenerative joint disease, lumbar spine disorder, cervical spine disorder, and headache disorder. In January 2021, VA granted service connection for tension headaches and the appeal of this issue is resolved. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection for lumbar spine degenerative arthritis In October 2013, VA denied service connection for lumbar spine degenerative arthritis. The Veteran disagreed with the decision and perfected this appeal. He argued that his back problems were related to active service. Specifically, that he injured his back while exercising and lifting weights. Service treatment records show that the Veteran was seen in April 1969 with complaints of back pain. He denied a history of injury but had been lifting weights. Impression appeared to be muscle strain. In March 1971, he was seen with complaints of back sprain. In April 1971, he was seen for a revisit concerning back pain. Objectively, there was paraspinal muscle spasm at T10-L2. He was given medication and analgesic balm. No musculoskeletal abnormalities of the back were noted on discharge examination in April 1971. In an April 2012 statement, the Veteran reported he sprained his back in April 1969 and that he has had continued back pain for over 40 years. He also reported that he was unable to receive medical care due to the distance to the medical center and financial constraints. In his November 2014 notice of disagreement, the Veteran argued that MRI reports were not requested during service to ascertain any tissue damage. In his June 2016 Form 9, he stated that discharge examiners did not ask questions related to his in-service injuries and that to date he continues to have pain and other symptoms. On VA examination in June 2013, the Veteran reported that his back condition began in 1969 while he was lifting weights. X-rays of the lumbar spine showed degenerative changes. Diagnosis was lumbar spine degenerative arthritis. The examiner provided a negative etiology opinion noting that service records show only evaluation and treatment for paraspinous sprain of the low back. The examiner stated 42 years have passed since these episodes and x-rays show only degenerative arthritis. In July 2019, the Board determined the above opinion was inadequate and remanded the issue for further development. The Veteran underwent additional VA examination in August 2020. He again reported back pain beginning in 1969. Following physical examination and review of the record, the examiner opined that the claimed condition was less likely than not incurred in or caused by service. In support, he noted there is no record of chronic musculoskeletal back pain during service and that the discharge examination was normal for any spine abnormalities indicating that the back condition had resolved. Per available records, it appears the chronic back condition started in 2013. As discussed, the Veteran was seen during service for complaints of low back pain and he has consistently reported continued symptoms since that time. The Veteran is competent to report that he experienced back pain both during and following service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Considering the overall record, the Board finds no reason to doubt the credibility of the Veteran's reports as concerns this issue. The Board acknowledges the negative VA opinions of record. The 2013 opinion was previously found to be inadequate. Regarding the 2020 opinion, the examiner stated there was no evidence of a chronic condition during service; however, he did not discuss the Veteran's credible reports of continued symptoms nor did he explain why the current arthritis was not otherwise related to the complaints and findings during service. The Board has made two attempts to obtain an adequate opinion on this issue. The Veteran is deceased, and to the extent additional VA examination is needed, it cannot be obtained. On review, the evidence is at least in equipoise as to whether the Veteran's lumbar spine degenerative arthritis is related to active service or events therein. Resolving reasonable doubt in his favor, service connection is warranted. 38 C.F.R. § 3.102. Service connection for left knee degenerative arthritis In October 2013, VA denied service connection for left knee degenerative arthritis, also claimed as patellofemoral syndrome/osteoarthritis. The Veteran disagreed with the decision and perfected this appeal. He argued that his left knee condition is related to injuries sustained during active service. In his December 2011 claim, he reported that he fell on his knees twice during accidents in service. He reported continued pain, discomfort, and difficulty walking since then. In an April 2012 statement, he reported that he injured his left knee falling off a motorcycle in early 1970 and additional trauma to the left knee in September 1970. In his November 2014 notice of disagreement, the Veteran argued that MRI reports were not requested during service to ascertain any tissue damage. In his June 2016 Form 9, he reiterated this contention. He further stated that discharge examiners did not ask follow-up questions related to his in-service injuries and that to date he continues to have pain and other symptoms. Service treatment records show that the Veteran was seen in January 1970 with complaints of left knee pain, possible torn ligaments, and abrasion and swelling. It was noted that he fell off his motorcycle going 10 miles per hour the night prior and scraped his left knee. Physical examination showed abraded skin, but no swelling of the knee joint or instability of ligaments. X-ray was negative for fracture. Impression was skin abrasion, and no signs of injury to the knee joint per se at present. In September 1970, the Veteran was seen for minor trauma to the left knee. Range of motion was full, and x-ray was negative. Impression was contusion. In February 1971, the Veteran presented with a painful lump on the left mid-thigh which he first noted 3 weeks prior since running. X-rays were negative for tumor. Impression was questionable soft tissue injury or insect bite with local reaction. On discharge examination in April 1971, the examiner noted a circular scar on the left knee. No musculoskeletal abnormalities of the knee were noted. VA records show the Veteran was seen in November 2008 with complaints of left knee pain for 2-3 weeks. Assessment was tendonitis. Private records dated in August 2010 show the Veteran fell and injured his left leg two weeks prior and had pain inferior to the patella. X-rays of the left tibia/fibula showed mild patellofemoral joint degenerative changes. A January 2011 VA treatment record states a diagnosis of left knee degenerative joint disease. VA treatment records show continued complaints of left knee pain and that the Veteran received regular injections in his left knee. The Veteran underwent a VA examination in June 2013. He reported that his left knee condition started in 1970 after a motorcycle accident. Following examination, diagnosis was left knee mild degenerative osteoarthritis. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. In support, the examiner stated that service records show treatment for left knee abrasions and contusions. X-rays were done on two occasions and were normal. Currently, he had full range of motion with pain and x-rays show only early degenerative osteoarthritis. It had been 42 years since in-service treatments. In July 2019, the Board determined the above opinion was inadequate and remanded for the issue for further development. The Veteran underwent a left knee MRI in July 2020. Impression was: (1) technically limited examination; and (2) medial meniscus tear. On VA examination in August 2020, x-rays of the left knee were interpreted as negative. Diagnosis was listed as left knee meniscal tear. The examiner opined that the claimed condition was less likely than not caused by service. In support, the examiner stated that there was no record of chronic or recurrent left knee condition during service and the discharge examination showed no abnormalities of the lower extremities. It looked like the left knee condition started around 2008. Further, the July 2020 MRI was negative for arthritis and showed a meniscus tear which was new and not there before. Initially, the Board acknowledges that the August 2020 knee x-ray was interpreted as negative with no significant radiographic evidence for arthritis. The August 2010 x-ray, however, showed mild degenerative arthritis at the patellofemoral joint. The Board finds evidence of current disability. As discussed, the Veteran was seen during service for complaints of left knee pain following two separate injuries, and he has reported continued symptoms since that time. The Veteran is competent to report knee pain beginning during service and continuing to date. See Layno. The Board acknowledges that records dated in 2008 and 2010 suggest a more recent onset to the left knee pain, but they do not include a detailed history and the Board does not find sufficient reason to doubt the credibility of the Veteran's statements concerning in-service onset with continuing symptoms. The Board notes the negative VA opinions of record. The 2013 opinion was previously found to be inadequate. Regarding the 2020 opinion, the examiner stated there was no evidence of a chronic condition during service; however, he did not discuss the Veteran's credible reports of continued symptoms nor did he explain why any arthritis was not otherwise related to the complaints and findings during service. The Board has made two attempts to obtain an adequate opinion on this issue. The Veteran is deceased, and to the extent additional VA examination is needed, it cannot be obtained. On review, the evidence is at least in equipoise as to whether the Veteran's left knee degenerative arthritis is related to active service or events therein. Resolving reasonable doubt in his favor, service connection is warranted. 38 C.F.R. § 3.102. Regarding the meniscal tear, the VA examiner clearly stated this was a new diagnosis and the record contains no probative evidence relating it to active service. Service connection for a cervical spine disorder In October 2013, VA denied service connection for a neck condition. The Veteran disagreed with the decision and perfected this appeal. He argued that his current cervical spine disorder began during or is otherwise related to active service. In an April 2012 statement, the Veteran reported that a military physician told him to massage his neck when he felt pressure at the back of his head. The Veteran questioned whether his headaches and neck pain could be attributed to his motorcycle accidents in 1970. In his November 2014 notice of disagreement, the Veteran argued that MRI's were not requested during service to ascertain any tissue damage. In his June 2016 Form 9, he reiterated this contention. He further stated that discharge examiners did not ask follow-up questions related to his in-service injuries and that to date he continues to have pain and other symptoms. Service treatment records show the Veteran was seen in August 1969 with a headache. There was slight pain on flexion of the neck. In January 1971, he was seen with complaints of tension headache and pressure that builds up at the back of his head. The physician instructed him to massage the back of his neck as often as pressure and tension were present. On discharge examination in April 1971, no abnormalities of the spine were noted. VA records dated in October 2008 document the Veteran's report of neck and shoulder pain for over 20 years. The Veteran underwent a cervical spine MRI in October 2013. He reported a history of multiple motor vehicle accidents and complaints of neck and right shoulder pain. Findings were noted at multiple levels of the cervical spine. The Veteran underwent a VA examination in August 2020. He reported his neck condition started in 1968-1970 while lifting weights. Following examination, diagnosis was degenerative arthritis. The examiner opined that the condition was less likely than not incurred in or caused by service. In support, he stated that there was no record of chronic or recurrent neck musculoskeletal pain during service and the discharge examination was normal. There were no records found for treatment received status post motor vehicle accident during service and per the available records, it looked like the chronic neck condition started in 2008. The Board acknowledges the Veteran's contention that his neck complaints might be related to an in-service motorcycle accident or to lifting weights. On review, the Veteran did not report neck complaints in connection with either of these events. Rather, he reported left knee pain following the motorcycle accident and back pain after lifting weights. The Board acknowledges the in-service finding of slight pain with neck flexion and that he was told to rub his neck. These were noted in the context of evaluation and treatment for his headache disorder and the Board does not find probative evidence of an in-service injury, event, or illness specifically related to the neck. Further, service treatment records do not show a chronic neck disorder and cervical spine arthritis was not noted during service or manifested to a compensable degree within one year following discharge from active service. Regarding nexus, the record contains a negative VA medical opinion. The opinion substantially complies with the remand directive and is considered probative as it was based on review of the record and supported by adequate rationale. The record does not contain probative evidence to the contrary. In making this determination, the Board acknowledges the Veteran's contentions. He has not, however, shown that he has the medical training, experience, or expertise to be competent to diagnose cervical spine arthritis or to provide a medical etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's unsupported lay statements concerning onset and continuity are not sufficient to establish in-service occurrence or nexus. (Continued on the next page) Finally, the Board notes that service connection was granted for tension headaches. The record does not contain competent evidence indicating that his cervical spine arthritis is proximately due to or aggravated by headaches and an opinion on secondary service connection is not warranted. See 38 C.F.R. § 3.310; McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. Emily Tamlyn Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.