Citation Nr: 21029956 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-26 937 DATE: May 17, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a disability of the right lower extremity is denied. Entitlement to service connection for a disability of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran's current cervical spine disabilities are cervical spondylosis (arthritis) and cervical strain, which were not manifest in service, or, for arthritis, within one year of separation, and are unrelated to service. 2. The Veteran's current thoracolumbar spine disabilities are spondylosis with radiculitis, which were not manifest in service or within one year of separation, and are unrelated to service. 3. The Veteran's current left hip disability is arthritis, which was not manifest in service or within one year of separation, and is unrelated to service. 4. The Veteran's current right knee disability is arthritis, which was not manifest in service or within one year of separation, and is unrelated to service. 5. The Veteran's current left knee disabilities are arthritis, strain, and a meniscal tear, which were not manifest in service, or, for arthritis, within one year of separation, and are unrelated to service. 6. The Veteran's current right and left lower extremity disabilities are left leg pain from lumbosacral neuritis and any bilateral lower extremity neuropathy related to diabetes mellitus. These were not manifest in service or within one year of separation and are unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a right lower extremity disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for a left lower extremity disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has been recognized as having active service from December 1959 to March 1960 and from March 1960 to March 1963. He appeals a July 2018 rating decision based on March 2018 claims. In October 2020, the Board denied his appeal for service connection for diabetes mellitus and remanded the above listed claims for further development. They now return for appellate review. The Board also recognizes the Veteran's attorney timely submitted a VA Form 20-0996, Decision Review Request: Higher Level Review (HLR), in response to the February 2021 Supplemental Statement of the Case (SSOC). On this form, it was indicated he wanted all the above listed issues adjudicated in the Appeals Modernization Act (AMA) HLR lane. However, on this form, the box "opt-in from SOC/SSOC" in Part III of the form was not checked. The AOJ requires that this box be checked in order to switch to the AMA appeals system and out of the legacy system. The AOJ ultimately rejected the request to switch this appeal from legacy to adjudication under the AMA. Therefore, adjudication of these claims will be under the legacy appeals system rather than under the AMA. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within one year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis and organic diseases of the nervous system are considered to be chronic diseases under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a cervical spine disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current cervical spine disabilities, which the evidence of record, including a February 2018 private medical record and the May 2018 VA examination report, indicates are cervical spondylosis, which was diagnosed in February 2018 with symptoms reportedly beginning in January 2018, and cervical strain, which was first diagnosed in August 2013. There is also a history of cervical fusion in 1977, as reported on VA examination in May 2018. The preponderance of the evidence indicates that these current diagnoses were not manifest in service or, for arthritis, within one year of separation, and are unrelated to service. The Veteran's service treatment records do not document any complaints related to a neck disability, any trouble in the neck area, or diagnosis of such. The first evidence of a neck disability is many years after service. Further, a December 2020 VA examiner opined that the Veteran's cervical spine condition was not incurred in or caused by service. The December 2020 VA examiner explained that no significant injury was noted in service that would be anticipated to cause a future cervical spine condition, including arthritis. The December 2020 VA examiner was cognizant of a February 1962 motor vehicle accident and what medical records showed concerning this event and reviewed the record. The December 2020 VA examiner also noted that the Veteran reported having a cervical fusion in 1977. However, the December 2020 VA examiner explained that the Veteran's separation examination in March 1963 documented a normal cervical spine examination and that no defects were noted at the time. The December 2020 VA examiner felt the most likely etiology of the Veteran's cervical spine disability is the normal aging process or post service overuse or injury. While the Veteran believes his cervical spine disability is related to his service, he had not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the December 2020 VA examiner's opinion, which was rendered by a medical professional in contemplation of the complete claims file and in consideration of known medical principles. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a cervical spine disability. 2. Entitlement to service connection for a thoracolumbar spine disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current thoracolumbar spine disability, which the evidence of record, including the May 2018 VA examination report, indicates is severe arthritis with left radiculitis. The preponderance of the evidence indicates that this current disability was not manifest in service or to a degree of 10 percent within one year of separation, and is unrelated to service. The Veteran's service treatment records show complaints of back pain and a hematoma at the base of the Veteran's lumbar spine in March 1962, following a motor vehicle accident in February 1962, and a painful back in October 1962, referring to a back injury in March, but no report of lumbar spondylosis. The Veteran's current disability was first shown much later, well after service discharge. A May 2018 VA examiner reported that there had been a lumbosacral strain in service, but that this had resolved, and that the Veteran now had severe lumbar spondylosis with left radiculitis. A December 2020 VA examiner opined that the Veteran's current thoracolumbar spine condition was less likely than not incurred in or caused by service. The December 2020 VA examiner noted that the Veteran was in an auto accident in February 1962, where he was thrown from the vehicle, sustaining multiple contusions, that he had had swelling in his low back and fluid drained from that area in March 1962, and was seen in follow up in March 1962 and was noted to have a resolving hematoma and no fractures. However, the December 2020 VA examiner also explained the Veteran's separation examination in March 1963 documented a normal spine examination with no defects noted. The December 2020 VA examiner also explained many years after service, the Veteran was noted to have complained of lumbago to his private provider and subsequently had an MRI of his lumbar spine in 2012, noting diffuse degenerative changes. The December 2020 VA examiner felt that the most likely etiology for the Veteran's current thoracolumbar spine complaints is the normal aging process and post service overuse. While the Veteran believes his thoracolumbar spine disability is related to his service, he had not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau, 492 F. 3d at 1376-77. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the December 2020 VA examiner's opinion, which was rendered by a medical professional in contemplation of the complete claims file and in consideration of known medical principles. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Accordingly, service connection is not warranted for a thoracolumbar spine disability. 3. Entitlement to service connection for a left hip disability The Veteran asserted, including in March 2018, that his left hip is related to his back disability. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current left hip disability, which the evidence of record, including the May 2018 VA examination report, indicates is osteoarthritis, which was first diagnosed in 2012. The preponderance of the evidence indicates that this current disability was not manifest in service or to a degree of 10 percent within one year of separation and is unrelated to service. The Veteran's service treatment records are silent for left hip problems and the Veteran's left hip was normal on service discharge examination in March 1963. The December 2020 VA examiner was cognizant of a February 1962 motor vehicle accident and what medical records showed concerning this event but found there was no significant injury to the Veteran's left hip in service that would be anticipated to cause a future left hip condition including arthritis. Also, the December 2020 VA examiner explained the Veteran's the separation examination in March 1963 was negative for any abnormal hip findings, and no defects were noted by the examiner at that time. The December 2020 VA examiner also explained the Veteran was first felt to have left hip degeneration on X ray in December 2012 but subsequently had normal x-rays. The December 2020 VA examiner felt that the most likely etiology for the Veteran's current left hip complaints is the normal aging process or post service overuse or injury. To the extent the Veteran believes his left hip disability is related to his service, or is secondary to another disability, he had not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. These issues are medically complex, as they require specialized medical education. Jandreau, 492 F. 3d at 1376-77. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the December 2020 VA examiner's opinion, which was rendered by a medical professional in contemplation of the complete claims file and in consideration of known medical principles. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Accordingly, service connection is not warranted for a left hip disability. 4. Entitlement to service connection for a right knee disability The Veteran asserted, including in March 2018, that his right knee disability is related to his related to his back disability. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right knee disability, which the evidence of record, including the May 2018 VA examination report, indicates is osteoarthritis which was first diagnosed in March 2017. The preponderance of the evidence indicates that this was not manifest in service or to a degree of 10 percent within one year of separation and is unrelated to service. The Veteran's service treatment records show that the Veteran was prescribed heat and an ace wrap and medication in December 1962, for right knee complaints, and also contain a reference to an injury in March 1962, but do not mention osteoarthritis, and his right knee was normal on service discharge examination in March 1963. The first report of right knee arthritis is in March 2017, many years after service. The December 2020 VA examiner opined that this was less likely than not incurred in or caused by service. The December 2020 VA examiner was cognizant of a February 1962 motor vehicle accident and what medical records showed concerning this event and noted that the Veteran had been seen in service for right knee pain from an injury in 1962 and was treated conservatively. The December 2020 VA examiner noted that the Veteran's separation examination in March 1963 was negative for any abnormalities of the knee. The December 2020 VA examiner explained that no significant injury was noted in service that would be anticipated to cause a future right knee condition including arthritis. The December 2020 VA examiner also explained the Veteran was seen for complaints of bilateral knee pain mentioned as existing only for months in March 2017 and x rays at that time showed mild patellofemoral joint degenerative changes. The December 2020 VA examiner felt that the most likely etiology of the Veteran's right knee arthritis is the normal aging process or post service overuse or injury. To the extent the Veteran believes his right knee disability is related to his service, or is secondary to another disability, he had not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. These issues are medically complex, as they require specialized medical education. Jandreau, 492 F. 3d at 1376-77. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the December 2020 VA examiner's opinion, which was rendered by a medical professional in contemplation of the complete claims file and in consideration of known medical principles. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Accordingly, service connection is not warranted for a right knee disability. 5. Entitlement to service connection for a left knee disability The Veteran asserted, including in March 2018, that his left disability is related to his related to his back disability. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current left knee disabilities, which the evidence of record, including the May 2018 VA examination report, indicates are osteoarthritis, left knee strain, and meniscal tear, which were first diagnosed in or after March 2017. The preponderance of the evidence indicates that these were not manifest in service or, for arthritis, to a degree of 10 percent within one year of separation; and that they are unrelated to service. The Veteran's service treatment records make no mention of any left knee problems, and the Veteran's left knee was normal on service discharge examination in March 1963. The Veteran's left knee disabilities currently shown were first diagnosed in or after March 2017, which was many years after service. Further, the December 2020 VA examiner opined that these were less likely than not incurred in or caused by service. The December 2020 VA examiner was cognizant of a February 1962 motor vehicle accident and what medical records showed concerning this event but also explained that there are no service treatment records showing left knee problems. The December 2020 VA examiner also indicated that the Veteran's separation examination in March 1963 was negative for any abnormalities of the knee and that no significant injury was noted in service that would be anticipated to cause a future left knee condition including arthritis. The December 2020 VA examiner also explained the Veteran was seen for complaints of bilateral knee pain mentioned as existing only for months in March 2017 and x rays at that time showed mild patellofemoral joint degenerative changes. The December 2020 VA examiner felt that the most likely etiology of the Veteran's left knee disabilities is the normal aging process or post service overuse or injury. To the extent the Veteran believes his left knee disability is related to his service, or is secondary to another disability, he had not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. These issues are medically complex, as they require specialized medical education. Jandreau, 492 F. 3d at 1376-77. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the December 2020 VA examiner's opinion, which was rendered by a medical professional in contemplation of the complete claims file and in consideration of known medical principles. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Accordingly, service connection is not warranted for a left knee disability. 6. Entitlement to service connection for a disability of the right lower extremity 7. Entitlement to service connection for a disability of the left lower extremity The Veteran asserted, including in March 2018, his lower extremity neuropathy is related to his diabetes mellitus. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right lower extremity disabilities, which the evidence of record indicates are left leg pain from lumbosacral neuritis, as reported in August 2017, and bilateral lower extremity neuropathy related to diabetes mellitus. In this regard, proximate to the appeal period, diabetic neuropathy was reported in a December 2017 private medical record. However, the preponderance of the evidence indicates that left leg pain from lumbosacral neuritis and bilateral lower extremity neuropathy related to diabetes mellitus were not manifest in service or, as organic disease of the nervous system, to a degree of 10 percent within one year of separation; and that they are unrelated to service. In this regard, the Veteran's service treatment records make no mention of the Veteran's current right and left lower extremity disabilities, his March 1963 service discharge examination was normal, and his current right and left lower extremity disabilities were first manifest many years after service, with no competent evidence indicating that they are related to service. Also, as the underlying causes of these disabilities are diabetes mellitus and a low back disability which are not service connected, thus service connection as secondary to these disabilities cannot serve as a basis for the grant of benefits sought here. 38 C.F.R. § 3.310. To the extent the Veteran believes his bilateral lower extremity disability is related to his service, or is secondary to another disability, he had not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. These issues are medically complex, as they require specialized medical education. Jandreau, 492 F. 3d at 1376-77. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Accordingly, service connection is not warranted for a disability of either lower extremity. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.