Citation Nr: 22008024 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-41 944 DATE: February 11, 2022 ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a low back disability is denied. Service connection for a left leg disability is denied. Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. FINDINGS OF FACT 1. Symptoms of left and right knee disabilities, diagnosed as derangement, degenerative changes, arthralgia, and left knee degenerative joint disease (DJD), were not continuous or recurrent in service or since service separation; arthritis did not manifest to a compensable degree within one year of active service; and there is no medical nexus between the claimed left and right knee disabilities and active service. 2. The Veteran sought treatment for low back pain in service; however, symptoms were not shown to be chronic and have not been continuous since service; arthritis did not manifest to a compensable degree within one year of active service; and there is no medical nexus between the current low back disorder, diagnosed as low back pain, degenerative changes, and intervertebral disc syndrome (IVDS), and active service. 3. Left leg, left hip, and right hip disorders are not demonstrated by the evidence. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a left leg disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 5. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 6. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1975 to June 1979 and July 1984 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran requested a hearing in August 2016. A hearing was scheduled in September 2019. The Veteran did not appear for the hearing. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear for the scheduled hearing, and he has since made no request for another hearing. Accordingly, the Board will proceed to a decision on this appeal as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704. In May 2021, the Board remanded the claims. The case has now been returned to the Board for adjudication. Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 U.S.C. § 3.309(a) under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 1. Service connection for a left knee disability is denied. 2. Service connection for a right knee disability is denied. As an initial matter, the Veteran has been diagnosed with degenerative changes of the knees and left knee DJD. As these are chronic disorders under § 3.309(a), both direct and presumptive service connection will be addressed. The Veteran has been diagnosed with bilateral knee derangement, bilateral degenerative changes, left knee DJD, and bilateral arthralgia. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to whether there was an in-service incurrence, in a May 1999 statement, the Veteran reported that he injured his knees in October 1975 after having to jump out of a helicopter. He stated that a corpsman wrapped his left knee and told him that if he went to sick bay and was put on light duty, he would not graduate with his company; thus, he did not seek treatment until he was in Okinawa a few months later at which time he stated his left knee had "mostly healed." After that, his knees would bother him when running long distances or during long marches. He has also reported that he injured his knees after being thrown off a bridge by his wife and another Marine during his second period of active service, that he was missing for 3 days, and that it was recorded as an injury due to pushing a jeep up a ramp. See August 19, 2021 C&P Examination report. Service treatment records (STRs) are absent of complaints, diagnoses, or treatment for a bilateral knee disorder. Specifically, the Veteran sought treatment for low back pain, a right ankle disorder, and myopia, among others, but did not report knee pain. A November 1984 treatment record documents back pain but not knee pain following an incident one year prior in which he pushed a jeep up a ramp. Therefore, the second element of direct service connection in-service incurrence is not met, and the medical evidence does not support the claim of direct service connection. With regard to presumptive service connection for arthritis, the weight of the evidence demonstrates no arthritis symptoms during the one-year period after service, and no diagnosis or findings of arthritis of any severity during the one-year post-service presumptive period. The Veteran was discharged from service in 1989 and was not diagnosed with right knee degenerative changes until 1999 by MRI study, and left knee degenerative changes until 2015 by x-ray study. For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. The Board next finds that the weight of the evidence demonstrates that symptoms of a bilateral knee disability were not continuous or recurrent since separation from active service in 1989. The first post-service documentation of a knee problem was in 1998, when the Veteran reported left knee pain for 2 years, although he did note that his left knee was injured during military service. He reported right knee pain in 1999 after undergoing left knee surgery in October 1998. The absence of post-service complaints, findings, diagnosis, or treatment for knee problems for nearly 10 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disabilities after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of the claimed disabilities were not continuous or recurrent since service separation includes an April 1999 treatment record indicating the Veteran reported right knee pain since September 1998, and a May 2018 clinical record in which the Veteran reported left knee pain beginning in 1996 with right knee pain developing shortly thereafter, seven years after separation from service. As such, the Board does not find that the evidence sufficiently supports continuous or recurrent symptomatology of the claimed disabilities since service so as to warrant a grant of service connection. The Board notes that no competent medical opinions have been received relating the claimed right and left knee disabilities to active service, nor does the medical evidence of record otherwise suggest such an etiological relationship. The Board acknowledges the Veteran's belief that his bilateral knee disabilities are related to his active service. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as a layperson, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Jandreau. For these reasons, the claim must be denied. Because the evidence persuasively weighs against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for a low back disability is denied. As an initial matter, the Veteran has been diagnosed with degenerative changes of the back. As this is a chronic disorder under § 3.309(a), both direct and presumptive service connection will be addressed. The Veteran has been diagnosed with chronic low back pain, IVDS, and degenerative changes. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in a May 1999 statement, the Veteran reported that he injured his back in October 1975 after having to jump out of a helicopter and later re-injured his back in service due to running long distances. He has also reported that he injured his back after being thrown off a bridge by his wife and another Marine as described above. STRs reflect that in November 1984, as noted above, the Veteran was diagnosed with a back strain and reported that he had injured his back one year prior when he pushed a jeep up a ramp; this places the occurrence of the back injury (which he avers occurred when he was pushed off of a bridge) between his separation from his first period of active service in June 1979 and his reenlistment for his second period of active service in July 1984. Notably, the July 1984 reenlistment examination report indicates normal evaluation of the spine. The Veteran again reported back pain and was diagnosed with a lumbar muscle strain in December 1984, January 1985, and September 1985. Physical examinations conducted in July 1988 and the separation examination conducted in January 1989 showed normal evaluation of the spine. Nevertheless, as the Veteran sought treatment for low back pain in service, the second element of direct service connection is met. With regard to nexus, at an April 2015 VA examination, the Veteran reported hurting his back in service after being assaulted during active service. Upon examination, the examiner opined that the claimed low back disorder was less likely than not incurred in service. He reasoned that it was pure speculation to opine as to whether a current low back disorder was incurred in service. At an August 2021 VA examination, the Veteran reported hurting his back in service after being thrown off a bridge. The examiner opined that a low back disorder was less likely than not incurred in service. She reasoned that STRs were absent of complaints, diagnoses, or treatment for a low back disorder, despite the documented muscle strains discussed above. An addendum opinion was requested in light of the August 2021 examiner's incorrect premise, and in a November 2021 report, the examiner opined that a low back disorder was less likely than not incurred in service. While he acknowledged the Veteran's in-service complaints of back pain, he opined that they were acute only, noting the July 1988 examination which did not show back pain. Further, he noted that the Veteran did not seek treatment for back pain until 2014-2015, more than 25 years after service separation. Finally, he stated that the in-service treatment for a lumbar spine strain does not lead to or cause the current diagnoses of intervertebral disc syndrome, multiple disc herniation and disc bulges, and/or L5/S1 sequestration or left lower extremity radiculopathy. There are no contrary competent medical opinions of record, and the November 2021 VA opinion is the most probative evidence of record on the issue of medical nexus. Based on the above, the medical evidence does not support a finding that a low back disorder was incurred in or is etiologically related to active service. While the Veteran complained of low back pain in service in 1984 and 1985, these conditions appear to have resolved, as reflected by the negative July 1988 and January 1989 physical examination reports and according to the November 2021 VA examiner's opinion. Further, while clinical records show that the Veteran began seeking treatment for low back pain in 2005, when he reported occasional low back pain with activity and not 2014 as indicated by the VA examiner this is still over 15 years after separation from service, weighing against a finding of continuous or recurrent symptoms of a back disability since service separation. Therefore, the weight of the medical evidence does not support the claim of direct service connection. With regard to presumptive service connection for arthritis, the weight of the evidence demonstrates no arthritis symptoms during the one-year period after service, and no diagnosis or findings of arthritis of any severity during the one-year post-service presumptive period. The Veteran was discharged from service in 1989 and was not diagnosed with degenerative changes of the back when a CT of the abdomen revealed an incidental finding of degenerative changes at L5-S1. For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. As above, the Board acknowledges the Veteran's belief that his back disability is related to his active service. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, as a layperson, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Jandreau. For these reasons, the claim must be denied. Because the evidence persuasively weighs against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for a left leg disability is denied. 5. Service connection for a left hip disability is denied. 6. Service connection for a right hip disability is denied. In a May 1999 statement, the Veteran reported injuring the left leg and hips after having to jump out of a helicopter and later re-injured his hips in service while running long distances. He has also reported that he injured his left leg and hips after being thrown off a bridge by his wife and another Marine as described above. Despite the Veteran's contentions, clinical records do not show a left leg, left hip, or right hip disorder (other than left lower extremity radiculopathy attributable to the non-service-connected back disability). Specifically, clinical records show treatment for an acquired psychiatric disorder, a low back disorder, and a bilateral knee disorder, among others. In February 1998, the Veteran reported left hip pain for 2 months, but an x-ray was normal, and no diagnoses were made, nor further treatment rendered. Moreover, functional impairment due to hip pain is not demonstrated by the evidence. Therefore, current disorders are not shown, and the medical evidence does not support the claims of service connection. Without a showing of a current disability, the claim for service connection for left leg and bilateral hip disabilities must be denied. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim." Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. Moreover, the medical evidence of record shows no objective examination findings of functional limitations due to the Veteran's leg and hip symptoms so as to constitute a disability within the meaning of 38 U.S.C. § 1110. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board has considered the Veteran's lay statements that these disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer opinions regarding whether there is an underlying diagnosis or etiology of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the evidence weighs persuasively against the claims and there is no doubt to be resolved in the Veteran's favor. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). T. SHERRARD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, Associate 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.