Citation Nr: 21041618 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-62 466 DATE: July 9, 2021 ORDER Entitlement to service connection for a neck 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. FINDINGS OF FACT 1. A neck disability was not shown as chronic in service; arthritis was not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the current neck disability is not otherwise etiologically related to an in-service injury or disease. 2. A right knee disability was not shown as chronic in service; arthritis was not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the current neck disability is not otherwise etiologically related to an in-service injury or disease. 3. A left knee disability was not shown as chronic in service; arthritis was not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the current neck disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. A neck disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. A right knee disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. A left knee disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 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 from May 1970 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for disabilities of the right and left knees and neck. The Veteran filed a notice of disagreement (NOD) in April 2016 and a statement of the case (SOC) was issued in October 2017. He subsequently perfected a timely appeal. In June 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In October 2019 and March 2021, the claims were remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in May 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the Veteran asserts entitlement to service connection for neck and right and left knee disabilities, which he contends were incurred during his active military service. Specifically, he contends that he hurt his neck jumping out of a helicopter and that this injury caused his current disability. See the Board hearing transcript, pg. 3. The Board notes that in clinical settings, the Veteran has alternatively reported a history of a whiplash type injury while riding in a tank in 1978. See e.g. April 2017 private clinical record. With respect to his knees, the Veteran contends that he injured his knees during service as a result of the wear and tear from participating in physical fitness activities. See e.g. Board hearing transcript, pg. 5. He argues that he has had no other type of trauma in his life which could have caused his neck and back disabilities. See April 2016 notice of disagreement. The Board notes that in clinical settings, however, the Veteran has also reported a history of a twisting injury to his left knee while playing softball but did not give a date of injury. See e.g. January 2012 VA clinical record. With respect to current disabilities, VA and private treatment records document diagnoses of degenerative disc disease (DDD) of the cervical spine with radiculopathy and degenerative arthritis, post cervical anterior fusion. See e.g. VA treatment records dated February 2014, private treatment records dated June 2019, and March 2021 VA examination. In addition, the Veteran has been diagnosed as having bilateral knee osteoarthritis with a total right knee replacement in 2015 and a total left knee replacement in 2016. See e.g. March 2021 VA examination. The Board finds that this evidence satisfies the first element of service connection. With respect to in-service injury or disease, the Veteran's service treatment records (STRs) do not document any neck or knee diseases or injuries. At his February 1979 separation medical examination, the Veteran endorsed a history of recurrent back pain. He denied having or ever having had a trick or locked knee as well as arthritis. The Veteran's neck, spine, and lower extremities were examined at separation and determined to be normal. Although an in-service disease, including arthritis, was not diagnosed in service, nor does the Veteran contend otherwise, as set forth above, the Veteran has reported sustaining injury to his neck and knees in service. The Veteran is competent to describe in-service injuries and report observable symptoms such as joint pain. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). In addition, the Veteran has submitted an August 2020 lay statement from H.T., who reports that he served with the Veteran from 1975 to 1979. Mr. H.T. indicated that he noticed that the Veteran experienced neck and knee pain during their service together but that he did not seek treatment for fear of being medically discharged. Id. Although the record on appeal contains some inconsistencies in the Veteran's description of his neck and knee injuries, the Board affords him the benefit of the doubt and finds sufficient evidence of in-service injury to the neck and knees of the type he has described. With respect to the third element necessary for an award of service connection, the Veteran was afforded a VA examination in March 2021 at which time the examiner confirmed a diagnosis of degenerative arthritis, post cervical anterior fusion, as well as bilateral knee joint osteoarthritis, status post total knee replacements. After examining the Veteran and reviewing the lay and medical evidence of record, the VA examiner concluded that the Veteran's diagnosed disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner correctly noted that the Veteran did not require medical care for 30 years for his subjective symptoms. In addition, she explained that degenerative arthritis is usually age-related, caused by trauma and wear and tear from aging. The examiner reported that the lay statements and relevant evidence were taken into consideration, but are not enough to help connect the current conditions to Veteran's in-service injuries after 30 years of wear and tear in civilian life. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, in the March 2021 VA medical opinion, the examiner found no nexus between the Veteran's military service and his current neck and right and left knee disabilities. The examiner's conclusions, as expressed in the March 2021 VA examination reports and medical opinions, were based on a review of the record, including the lay statements and medical evidence. The examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the March 2021 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Given the explanation provided by the March 2021 VA examiner and the fact that the examiner considered the record on appeal, the Board finds that the VA medical opinion provides an adequate basis for consideration of whether the Veteran's claimed neck and left and right knee disabilities are medically related to his military service. Accordingly, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed neck and left and right knee disabilities and the Veteran's active duty service outweighs the evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that his neck and right and left knee disabilities are due to his military service. However, the Board herein finds that the Veteran's assertions of nexus concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board has also considered the evidence of record showing that the Veteran has been diagnosed as having arthritis, an enumerated disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, arthritis was not diagnosed beyond legitimate question in service or manifest to a compensable degree within one year after separation. The Veteran's neck and spine were examined at his February 1979 separation examination and determined to be normal and the record does not contain any probative evidence of arthritis in the first post-service year or, indeed, for many years thereafter. The Board has considered the Veteran's statements in support of his claims that he sustained neck and knee trauma in service and developed neck and knee pain thereafter. The record contains some inconsistencies regarding the date of onset of his neck and knee symptoms. For example, the post-service record on appeal includes VA clinical records showing that in January 2012, the Veteran reported a history of pain in his knees which started approximately 10 years prior and continued to worsen. Private clinical records reflect that in January 2014, he was seen for neck pain for the past three months. Questions of credibility notwithstanding, the Board finds that the most probative evidence of record does not attribute the reported continuous symptoms in service and thereafter to arthritis. As set forth above, the March 2021 VA examiner considered the Veteran's reported symptoms but attributed them to general wear and tear over many years. Although the Veteran is competent to report having experienced neck and knee pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis, as opposed to overuse, aging, or some other cause. That issue is medically complex, as it requires clinical expertise such as knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including the service treatment records, the post-service medical evidence, March 2021 VA medical opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claims of entitlement to service connection for a neck and right and left knee disabilities. Thus, the benefit-of-the-doubt rule does not avail the Veteran. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.