Citation Nr: 21042003 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 14-00 630 DATE: July 11, 2021 ORDER Entitlement to service connection for a back condition is denied. Entitlement to service connection for a right knee condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back condition began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a right knee condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1981 to March 1982. She testified at a Board hearing in January 2017. The transcript is of record. The Board of Veterans' Appeals (Board) previously granted reopening of these claims remanded these issues for further development. They have now returned for adjudication. 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, 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). 1. Entitlement to service connection for a back condition The Veteran contends that she slipped twice during service and hurt her back. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of mild degenerative disease and multi-level spondylosis, and evidence shows that at least one fall in service occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records include a report that the Veteran slipped on the ice in January 1982. Whereas she reported injuring her right knee there was no mention of an injury to her back. The records are otherwise extensive and detailed, which undercuts the credibility of the report that the Veteran suffered a back injury while in service. A medical examination from 1984 noted a normal gait and no acute distress. The Veteran omitted back pain from her 1997 claim for knee disability. She also denied back pain in medical records from 1999, 2000, and 2001, although she did complain of intermittent pain in 1999. These facts further undermine the credibility that the Veteran experienced back pain continuously during and immediately after service. A later orthopedic evaluation in October 2002 diagnosed her with somatoform disorder, which is a mental disorder that causes bodily symptoms including pain. See https://www.webmd.com/mental-health/somatoform-disorders-symptoms-types-treatment. Such is consistent with the lack of a chronic low back disability at the time. The Veteran reported in an April 2006 medical evaluation that she had had back pain for two years since a fall-related injury while working. She reported in June 2008 that she hurt her back falling out of bed in service. Both statements contradict her claim of injury due to falling on ice After considering the history of complaints and medical records, the Board finds that it is not credible that the Veteran injured her back during service and continued to have back pain and problems within one year and thereafter. In January 2017, the Veteran's chiropractor wrote that he believed her chronic lower back pain was directly related to the fall she sustained in December 1981. This opinion is of limited weight as it does not provide a rationale and appears to be based solely on the recollected history of the Veteran. As mentioned above, that history is not credible, and the chiropractor did not consider the medical records or statements that contradicted the reports. The reliance on an inaccurate (non-credible) history renders the opinion itself non-credible. Following remand, VA obtained a medical opinion in September 2020 with addendums in October and November 2020. The examiner considered the record including the opinion by the chiropractor and opined that it was less likely than not that the Veteran's lower back conditions were incurred in or caused by service. The examiner explained that the records from service would have contained mention of and treatment for a back condition had the Veteran injured her back severely enough to have caused her current condition. Instead the Veteran's mild degenerative arthritis and multi-level spondylosis were most likely caused by age. The VA examination weighs against service connection as it directly addresses the available evidence and is based on her years of experience and after a review of the medical literature. Although the examiner wrote that she could not comment on the chiropractor's opinion, she also wrote that she considered his opinion and her opinion disagreed. The weight of the evidence is against a finding of nexus between the Veteran's back and service. Service connection must be denied. Although arthritis is a presumptive chronic condition, the presumption is inapplicable to this case. Without a credible history of diagnosis or symptoms of arthritis within one year of service, the chronic presumption does not apply. 2. Entitlement to service connection for a right knee condition The Veteran contends that she fell during service and injured her right knee. She then sought treatment "not too long after service," but it got worse. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the evidence weighs against finding that the Veteran's right knee condition began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records include a report that the Veteran slipped on the ice in January 1982. The records indicate a bruise to her right knee, but no swelling or discoloration and normal range of motion. A medical examination from 1984 noted a normal gait and no acute distress. VA obtained an examination in October 2013. The examiner opined against service connection. The examiner examined the medical records from service and explained that the evaluation without follow up indicated that the fall was a minor event that was not associated with significant injury or complications. Accordingly, residual problems would not be expected. He further explained that x-rays from 1989 were unremarkable (the examiner stated 8/10/99, but the records were actually 8/10/89. The examiner referred to this as "some seven years after service," which further evidences the correct 1989 date). According to the examiner, had the event in service been significant then degenerative changes would have developed by the time of the 1989 x-rays. Instead, the examiner pointed to right knee injuries in August and October 1990, arthroscopic surgery in 1998, and age-related wear and use as the likely cause of the Veteran's disabilities. This thorough rationale weighs against service connection as it explains how the records would have presented if the Veteran's injury was service connected. Reference is also made to a November 1991 MRI of the right knee that was unremarkable for any damage or problems. This further corroborates the October 2013 examiner's statement that the Veteran did not have degenerative changes for several years after service. Medical records from 1990 indicate that the Veteran was being seen for only her left knee until an accident involving her right knee around July 1990. This later accident resulted in pain, swelling, and a clicking sound, which further corroborates the October 2013 examiner's opinion that the Veteran's problems began several years after service. The Veteran's testimony that she experienced knee problems shortly after service is acknowledged, but this is not inconsistent with problems beginning in 1989 or 1990, which could be considered shortly after service compared to the approximate 35 years the hearing was after service. The lack of follow on records after the initial incident in service combined with the delay in filing for service connection on the right knee until after the 1990 events support the view that her problems did not begin until years after service. This is in particularly true as the Veteran sought service connection for other disabilities more immediately after service. In January 2017, the Veteran's chiropractor wrote that he believed her right knee disability was directly related to the fall she sustained in December 1981. This opinion is of limited weight as it does not provide a rationale and appears to be based solely on the recollected history of the Veteran. It does not appear that the chiropractor was aware of the unremarkable x-ray or MRI, or the injury that occurred in 1990. Further, as discussed above, the reliance on a inaccurate medical history limits the probative value of the medical opinion. VA provided a supplemental opinion in September 2020. The examiner considered the record and found that the lack of continuity of care after the incident or within one year of service rendered it less likely than not that the Veteran's in-service injury was severe enough to result in lasting disability. The examiner instead opined that the knee was most likely age related. Although the examiner wrote that she could not comment on the chiropractor's opinion, she also wrote that she considered his opinion and her opinion disagreed. This further weighs against service connection as it attributes the disability to other causes and explains why the injury in service was unlikely to be the cause. Considering the opinions and the record it is not as least as likely as not that the Veteran's right knee condition is related to service. Accordingly, service connection must be denied. Although arthritis is a chronic presumptive condition, the opinions and imaging results indicated that the Veteran did not have arthritis during or within one year of service. The record further reflects that the Veteran's symptoms were not continuous since one year from service and there was a several year gap before further complaint. Accordingly, presumptive service connection for a chronic condition is not applicable. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Saindon, 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.