Citation Nr: 21029173 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-35 166A DATE: May 12, 2021 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. The most probative evidence of record shows that a left knee disorder did not manifest during service or within one year of active service; and it is not otherwise related to active service. 2. The most probative evidence of record shows that a low back disorder did not manifest during service or within one year of active service; and it is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left knee disorder have not been met. 38 U.S.C. § 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for a low back disorder have not been met. 38 U.S.C. § 1101, 1110, 5103, 5103A, 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 United States Army from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a May 2018 videoconference hearing. A copy of the transcript is of record. In July 2018 and in June 2020, the Board remanded the claims for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). 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). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for a left knee disorder 2. Entitlement to service connection for a low back disorder The Veteran contends that he has a left knee and low back disorder that are related to injuries he sustained during active service. As to his left knee, the Veteran testified that he twisted his left kneecap while skiing during a training expedition. The Veteran stated that, following the incident, he sought medical attention and visited a care center four hours away from his unit. The Veteran also testified that he injured his back as a result of lifting heavy rounds of artillery. The Veteran reported that he sought treatment while stationed in Germany. As to both disorders, the Veteran reported that following service, he sought treatment with VA and private providers and that his pain has continued since service. See May 2018 Board Hearing Transcript. The Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis of a knee or back disorder. Specifically, the Veteran's March 1973 enlistment examination documented that there were no abnormalities of the Veteran's spine or lower extremities. A March 1973 Report of Medical History was also negative for any relevant problems. An April 1974 Report of Medical Examination reveals a normal clinical evaluation of all systems. An April 1974 Report of Medical History shows that the Veteran complained of hearing loss and foot trouble, but no other abnormality. A June 1976 Report of Medical Examination, conducted at the time of separation, documented that there were no abnormalities of the Veteran's spine or lower extremities. A June 1976 Report of Medical History revealed that the Veteran noted that he was in good health and endorsed the statement with his signature. The Veteran did, however, recognize having or having had foot trouble; hearing loss; ear, nose, or throat trouble; and broken bones. No relevant problems relating to the left knee or back were noted in the physician's summary of the report. Notably, the Veteran checked the box "No" as having or having had swollen or painful joints; cramps in the legs; bones, joint, or other deformity; recurrent back pain; "trick" or locked knee; or having worn a brace or back support. Again, during the May 2018 hearing, the Veteran testified that he sought treatment with private providers following separation. Following the hearing, the Veteran provided authorization and release forms for these providers, noting on the forms that he sought treatment in the mid-1990s. However, the available medical records show otherwise. Post-service, the first indication of left knee symptoms is dated in 2006, and the first indication of low back symptoms is dated in 2008. Specifically, in April 2006, impressions revealed mild degenerative changes of both knees consistent with very mild osteoarthritis. A June 2008 VA treatment record showed that the Veteran reported chronic back pain. Upon physical examination, the clinician also noted that the Veteran had swelling and crepitation in both of his knees, and the Veteran used crutches to ambulate. A computed tomograph of the Veteran's lumbar spine showed multilevel disc protrusions with stenosis, most severe at the L4-L5 level. The Veteran was afforded a VA knee examination in August 2019, at which time the examiner noted a diagnosis of degenerative arthritis of the bilateral knees. At the time of the examination, the Veteran reported that while skiing in Switzerland, he injured his left knee. The Veteran further reported that he wore a bandage for several weeks. The Veteran reported that his current symptoms included swelling and constant pain with varying intensities. He uses over the counter medication, rests, and massages his knee for relief. The examiner opined that it was less likely than not that the Veteran's left knee disorder was incurred in or caused by an in-service injury or event. The examiner reasoned that the Veteran's service treatment records were silent for complaints or a diagnosis of a left knee condition. The examiner also stated that the symptom frequency, intensity, and duration were per self report and not confirmed in the claims file. The Veteran was also afforded a VA back examination in August 2019, at which time the examiner noted a diagnosis of degenerative disc disease. At the time of examination, the Veteran reported that he started having low back pain during military service after lifting items. The Veteran also reported having a constant low back pain. Following service, he stated that he wore a back brace; took over the counter medication; and used a heating pad for pain relief. The Veteran also stated that he experiences sharp pains that occur down the back of his left leg. The examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by an in-service injury or event. The examiner reasoned that the Veteran's service treatment records were silent for complaints or a diagnosis of a back condition. The examiner also stated that the symptom frequency, intensity, and duration were per self report and not confirmed in the claims file. Thereafter, the Veteran was provided another VA knee and back examination in October 2020, at which time the examiner noted diagnoses of degenerative changes of the knees and degenerative arthritis of the spine. At the time of the examination, the Veteran reported that he injured his knees while skiing in the Swiss Alps and that he injured his back in Germany in 1975 during training and that he started experiencing pain loading field artillery rounds. As to both conditions, the examiner opined that it was less likely than not that the Veteran's back condition was related to service. The examiner reasoned that while the Veteran's MOS provided an increased risk for knee joint and back injuries, the Veteran's service treatment records were silent for a knee and back condition during active service and during the presumptive timeline. The examiner also stated that degenerative knee and back conditions occur from wear and tear of cushioning between joints cartilage and that the process usually causes symptoms of pain and stiffness of joints long before the time period in which the Veteran suffered treatment and that such discomfort usually causes one to seek treatment much earlier. The examiner also stated that the Veteran's medical records did not show complaints of knee or back conditions until thirty years post separation. In considering the evidence discussed above, the Board acknowledges the Veteran's assertions that he has experienced left knee and back pain since the in-service injuries occurred. The Veteran is certainly competent to report as to the observable events and symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the lack of in-service evidence of any relevant left knee or back complaints in the face of several service treatment records documenting the Veteran's numerous complaints of pseudofolliculitis barbae; patchy, lightening of skin; lumping of the chin; hearing loss; ear, nose, or throat trouble; and foot trouble weighs against his assertions. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). Notably, the Veteran specifically denied experiencing symptoms pertaining to his left knee and back in his June 1976 Report of Medical History, conducted at separation. The Board therefore finds that the Veteran's statements are not credible evidence to establish a history of continuous left knee and back symptoms since service. After considering the August 2019 and October 2020 VA medical opinions as a whole and in the context of the record, the Board finds that the examiners' conclusions provide probative value because they address the medical issues in this case and were based on the examiners' analysis of the evidence and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion,"); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole in the context of the evidence of record). The Board also acknowledges the claim and supporting rationale (in the October 2020 medical opinion) that the Veteran's MOS provided an increased risk for knee joint and back injuries. However, the suggestion of an increased risk is simply too general to make a causal link between the Veteran's left knee and low back disorders and service. Furthermore, even considering such an increased risk of knee joint and back injuries, the examiner still opined that it was less likely than not that the Veteran's disorders were related to service. The Board also notes that both examiners emphasized the absence of medical records documenting any chronic symptoms since the in-service injury. In this regard, the Board notes that the lack of contemporaneous medical evidence does not warrant a conclusion of a lack of nexus. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the fact that the examiners relied on the documented history of medical complaints rather than the Veteran's reported history of continuous symptoms is harmless in light of the Board's finding that the Veteran's reported history is not credible. The Board also acknowledges that the October 2020 opinion identified that the first documented post-service complaints of knee and back pain were over three decades after service. Here, the passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir, 2004). The Board has also considered whether service connection for arthritis of the left knee and back may be granted on a presumptive basis. See 38 C.F.R. § 3.309(a). However, arthritis of the left knee and back were not documented during the Veteran's active duty service, and there was no in-service manifestation sufficient to identify either disease entity. The pertinent regulations require that manifestations are "noted" in the service records, and that is not the case in this instance. In light of the above discussion, the Board finds that the most probative evidence of record reflects that arthritis of the left knee and of the back did not manifest until many years after the Veteran's active duty service. As a result, the Veteran is not entitled to service connection for arthritis of the left knee or back on a presumptive basis, either as a chronic disease during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-37. Therefore, chronicity is not established in service or within a year of separation. The Board accepts as the most probative evidence of record the VA examiners' opinions, taken to specifically include the October 2020 addendum opinion. While the Board is sympathetic to the Veteran's sincerely held belief that his left knee and low back conditions are related to service, it must be noted that as a lay person, the Veteran is not considered competent to provide a nexus opinion regarding the etiology of his left knee or low back condition as he lacks the medical training or credentials to make such a determination since it cannot be determined based solely on observable symptoms such as pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, despite resolving all doubt and ambiguity in favor of the claim, the Board finds that the evidence preponderates against the claim for service connection for a left knee and low back disorder, and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hanson, Tiffany 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.