Citation Nr: 22016122 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-28 951 DATE: March 21, 2022 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The most persuasive evidence demonstrates that the Veteran's currently diagnosed lumbar degenerative disc disease (DDD) did not have its onset during active duty service, did not manifest within one year of separation from service, and was not otherwise etiologically related to service. 2. The most persuasive evidence demonstrates that the Veteran's currently diagnosed bilateral knee osteoarthritis did not have its onset during active duty service, did not manifest within one year of separation from service, and was not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1978 to December 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the case is now before the RO in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a June 2017 Central Office hearing. A transcript of this hearing is of record. The case was initially brought before the Board in August 2018, at which time the Board denied service connection for a low back disability and a bilateral knee disability; denied a higher evaluation for plantar fasciitis with degenerative arthritis of both feet; and remanded the claims for service connection for a right ankle disability, an eye disability, hypertension, and a bilateral wrist disability and for a higher initial evaluation for degenerative changes of left first (big) toe. The Veteran appealed the August 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2020 memorandum decision, the Court affirmed the Board's August 2018 decision denying a higher evaluation for plantar fasciitis with degenerative arthritis of both feet, set aside the portion of the August 2018 Board decision denying service connection for a low back disability and a bilateral knee disability and remanded the matters for further proceedings. The case was returned to the Board. In March 2021, the Board remanded the issues on appeal for additional development. The case was returned to the Board. In September 2021, the Board remanded the issues on appeal for additional development. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is 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). Notwithstanding the provisions relating to presumptive service connection, a veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for a low back disability 2. Entitlement to service connection for a bilateral knee disability The Veteran asserts that his low back disability and bilateral knee disability developed due to the physical demands of his in-service duties as a Yeoman in the U.S. Navy. Specifically, the Veteran explained that he would run and exercise on the metal/steel decks, while serving aboard three different ships, to maintain the physical standards during service. Further, the Veteran said that his job as a Yeoman included administrative duties and physically demanding tasks of moving and relocating office equipment and supplies, lifting and maneuvering cleaning equipment during cleanliness inspections, and carrying very heavy boxes of Xerox paper up and down numerous ladders throughout the ship for replenishment. Additionally, the Veteran described how he was assigned to carry loads of ship supplies during underway replenishments and to lift and handle firefighting equipment during operational exercises. Overall, the Veteran contends that the manual labor he performed during service contributed to the wear and tear of his body and the deterioration of his back and knees. See June 2013, June 2014, and September 2014 statements. At a June 2017 Board hearing, the Veteran testified that he did not seek treatment during service for his back and bilateral knees, because "it had to be really somewhat extreme to go there." He could not identify when his bilateral knee symptoms began, but he believed that his bilateral knee symptoms continued since service. For the Veteran's low back, he said that he first noticed having low back symptoms in 2000. The question before the Board is whether the Veteran's bilateral knee disability and low back disability were etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, the Board finds that the most persuasive evidence weighs against finding service connection for a bilateral knee disability and a low back disability is warranted. The Board finds that the Veteran has current diagnoses for bilateral knee osteoarthritis and lumbar DDD. See September 2014 VA treatment record and June 2016 private treatment record. Initially, the Board notes that arthritis is a chronic disease under 38 C.F.R. § 3.309(a). The Board has considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.307(a)(3). However, available treatment records indicate that the Veteran was diagnosed with arthritis in the bilateral knees and the lumbar spine in 2014, which was approximately 15 years after his discharge from service. See September 2014 VA treating physician statement. According to the Veteran's service treatment records (STRs), there were no documented complaints, treatment, or diagnosis for any right knee or back problems. In June 1985, the Veteran sought treatment for left knee pain after jogging and playing basketball. There was no reported incident when pain or trauma occurred. He was diagnosed with probable patellar ligament strain. Subsequent STRs did not document any further complaints or treatment for his left knee. At an October 1999 separation examination, the Veteran had normal spine and lower extremities clinical evaluation results, and no pertinent symptomatology was reported on his associated report of medical history. Notably, clinical findings at a December 2013 VA examination found normal knees with no degenerative or traumatic arthritis. There is no clinical evidence that arthritis existed for either the Veteran's bilateral knee disability or low back disability prior to 2014. Thus, the Board finds that the evidence does not show that the Veteran's arthritis manifested within one year of separation from active duty service; nor does it show that he had continuous symptoms of arthritis following service. Accordingly, the Board finds that the Veteran's arthritis, as a chronic disease, is not entitled to service connection for a bilateral knee disability and a low back disability on a presumptive basis. However, the Board must still consider whether the Veteran's bilateral knee disability and low back disability are directly related to his active duty service. Now, the Board recognizes that the record includes conflicting medical opinions concerning whether the Veteran's current bilateral knee disability and low back disability are etiologically related to his active duty service. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In a September 2014 statement, the Veteran's VA treating physician noted that the physician had been treating the Veteran since 2003 and summarized the Veteran's in-service duties performing physical activities. The VA treating physician found that the Veteran's knees were worn down due to the impact from running or working on the ships. Noting that the Veteran had complaints of knee pain in his STRs, the VA treating physician explained that now the Veteran had chronic knee and back degenerative changes, which were verified by plain films and MRI. The VA treating physician opined that "it is at least as likely as not that the injuries sustained while on active duty have led to the current arthritic changes in his knees....and back." The Board finds that the September 2014 VA treating physician's opinion is not sufficient to award the Veteran's service connection claims. In that regard, the VA treating physician did not provide an underlying rationale for the opinion. Although the VA treating physician discussed clinical evidence for the Veteran's current diagnoses, the VA treating physician did not explain how the Veteran's current arthritis of the knees and back were related to his active duty service. Furthermore, the VA treating physician did not discuss any of the Veteran's STRs, which identified only one isolated left knee complaint and no complaints related to his right knee or his back. Given the lack of rationale for the September 2014 VA treating physician's opinion, the Board finds that the opinion does not provide persuasive evidence regarding the etiology of the Veteran's bilateral knee disability and low back disability. By contrast, in a December 2021 VA opinion, the VA examiner opined that the Veteran's bilateral knee osteoarthritis was less likely than not incurred in or caused by active duty service. In providing a rationale, the December 2021 VA examiner explained that the Veteran's current objective diagnostic studies showed relatively mild degenerative disease. Citing medical literature, the December 2021 VA examiner discussed how the etiology of osteoarthritis is either genetic predisposition, anatomic abnormality, inflammatory, posttraumatic, or some weighted combination. Noting the Veteran's contention that his usual in-service work duties predisposed him to his current bilateral knee pathologic condition would suggest he sustained a traumatic injury while on active duty. The December 2021 VA examiner summarized how certain major and minor traumatic events would predispose the Veteran to his current degenerative disease. However, the December 2021 VA examiner found no objective findings or complaints during service which were consistent with a major traumatic event, such as a diagnosis of knee fracture, internal derangement, tendon or ligament tear, or dislocation. Further, there were no objective findings on physical examination consistent with pathologic conditions, such as effusion, instability, weakness, or deformity. Finally, the Veteran also denied having sustained any such traumatic event. For minor traumas, the December 2021 VA examiner explained that such traumas could occur with usual activity and occupational hazards. However, these types of micro trauma cause acute symptoms that linger and transform into a chronic baseline pain. No complaints of such symptoms were made during service or on his separation examination. He had a normal knee examination at his January 2000 VA examination. The medical literature indicates that certain occupational activities are risk factors for degenerative disease, however, the literature also indicates that these activities always cause acute symptoms that result in chronic pain in the near-term, mid-term, and long-term. The December 2021 VA examiner found that the Veteran's medical records did not document any near-term or mid-term complaints. Further, the December 2021 VA examiner determined that 2012 knee radiographs showed very, mild medial compartment degenerative changes that were symmetric and inconsistent with a posttraumatic etiology, but more consistent with a primary process that is part of natural aging. Additionally, posttraumatic arthritis due to either a major traumatic event or an accumulation of work-related activities most commonly manifest within five years of exposure to the activity. Overall, the December 2021 VA examiner concluded that this empirical result is inconsistent with the Veteran's history and his documented objective and subjective findings. Additionally, in a December 2021 VA opinion, the VA examiner opined that the Veteran's lumbar DDD was less likely than not incurred in or caused by active duty service. In providing a rationale, the December 2021 VA examiner similarly found that the Veteran's current diagnostic studies showed relatively mild degenerative disease. Furthermore, the December 2021 VA examiner referenced the Veteran's in-service physical duties and cited the same medical literature discussed above regarding the predisposition to the Veteran's current degenerative disease based on major or minor traumas. However, the December 2021 VA examiner found no objective findings or complaints consistent with a major traumatic event, such as a diagnosis of lumbar fracture, disc derangement, spinal ligament tear, or vertebral dislocation. Further, there were no objective findings on physical examination consistent with pathologic conditions, such as radiculopathy, instability, weakness, numbness, or deformity. Finally, the Veteran also denied having sustained any such traumatic event. For minor traumas, the December 2021 VA examiner noted that no complaints of such symptoms were made during service or on his separation examination. He had a normal back examination at his January 2000 VA examination. The December 2021 VA examiner found that the Veteran's medical records did not document any near-term or mid-term complaints. Additionally, posttraumatic arthritis due to either a major traumatic event or an accumulation of work-related activities most commonly manifest within five years of exposure to the activity. Overall, the December 2021 VA examiner concluded that this empirical result is inconsistent with the Veteran's history and his documented objective and subjective findings. In this case, the Board finds that the December 2021 VA opinions provide the most persuasive evidence regarding the etiology of the Veteran's bilateral knee and low back disabilities. The Board finds that the December 2021 VA opinions are based on a review of pertinent medical records, consideration of the Veteran's lay statements, including the circumstances of his in-service duties, and discussion of relevant medical literature, and was supported by a thoroughly reasoned analysis. Accordingly, the Board concludes that service connection for the Veteran's bilateral knee disability and low back disability is also not warranted on a direct basis. Lay evidence may be competent to establish a medical etiology or nexus. However, given that the Veteran has not demonstrated that he has specialized medical training or expertise, the Board must find that he is not competent to provide a medical opinion as to the etiology of his bilateral knee osteoarthritis and lumbar DDD. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his lay assertions have little probative value. In summary, the evidence is neither evenly balanced or approximately so with regard to whether the Veteran's claims for service connection for a bilateral knee disability and low back disability are warranted. Rather, the evidence persuasively weighs against service connection for a bilateral knee disability and a low back disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to these claims. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, the service connection claims for a bilateral knee disability and a low disability are denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.