Citation Nr: 22017948 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 16-33 460 DATE: March 27, 2022 ORDER Service connection for a right knee condition is denied. Service connection for a back condition is denied. REMANDED An initial compensable rating for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. The weight of the probative evidence is against a finding that the Veteran's current right knee condition had its onset during active duty service or is related to such service, to include any exposure event experienced by the Veteran during service in Southwest Asia. 2. The weight of the probative evidence is against a finding that the Veteran's current back condition had its onset during active duty service or is related to such service, to include any exposure event experienced by the Veteran during service in Southwest Asia; or that arthritis was manifested within one year of the Veteran's discharge from active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1990 to January 1992, with service in Southwest Asia from January 1991 to May 1991. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in November 2012. A transcript of the Veteran's March 2019 testimony before the undersigned Veterans Law Judge is of record. The claims were remanded by the Board in February 2021. The Board also remanded a claim for service connection for depression. Service connection was subsequently granted for unspecified depressive disorder in an August 2021 rating decision. That issue is no longer before the Board on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Such chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of at least 10 percent or more no later than December 31, 2026, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(1). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). Compensation shall not be paid, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf war; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or events that occurred between the appellant's most recent departure from active duty in the Southwest theater of operations during the Persian Gulf war and the onset of the illness; or if there is affirmative evidence that the illness is the result of the appellant's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). As noted in the Introduction, the Veteran served in the Southwest Asia theater of operations. Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness. 1. Service connection for a right knee condition The Veteran seeks service connection for a right knee condition. He asserts that he injured this knee during service on January 23, 1992, and sought treatment. The Veteran testified that his right knee problems started in service, and he attributed them to the equipment he had to carry. He said he was treated for a right knee sprain in service and subsequent treatment in service was Tylenol and elevation of the knee. The Veteran also described how after service, his knee gradually worsened and started giving out in 1992, just after discharge. He testified that he had surgery to repair his anterior cruciate ligament (ACL) in 2007 or 2008. Service treatment records do not document any specific complaints related to the right knee and at the time of his January 1992 discharge examination, the Veteran denied "trick" or locked knee and clinical evaluation of his lower extremities was normal. The post-service evidence of record includes orthopedic records showing the Veteran was seen in January 2010 with complaint of bilateral knee pain for two months without specific injury. He was assessed with right knee medial meniscus tear and bilateral patellofemoral pain syndrome after magnetic resonance imaging (MRI). The Veteran underwent right knee surgery in March 2010. The Veteran underwent a VA examination in September 2012, during which he was diagnosed with right knee status post meniscus tear repair and chondromalacia patella. He reported that he noticed mainly right knee pain during active service with long marches and training. He never complained about knee pain while on active duty, but he noticed a gradual increase in knee pain throughout his service. Over the years since his discharge, his leg would buckle and he would fall to the ground, then the knee would come back. Gradually over the years there had been an increase in the pain in tensity and severity. The examiner provided an opinion that since the diagnosed conditions have a clear and specific etiology and diagnosis, they are not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Since the September 2012 VA examiner did not address whether the diagnosed right knee conditions were directly related to service, the Veteran underwent another VA examination in July 2021 pursuant to the Board's February 2021 remand. Diagnoses of right knee strain, right knee meniscal tear, and right knee patellofemoral pain syndrome were provided. The Veteran reported that he had chronic right knee stiffness and aching pain that is rather constant. He had difficulty bending at the knees and avoided the stairs secondary to knee pain. He also had difficulty kneeling on his right knee. It was the examiner's opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was based on review of the medical evidence specific to this Veteran, which included an October 1989 enlistment examination during which the Veteran denied any history of knee pain, service treatment records that are silent for a chronic right knee condition while in service, and the January 1992 separation examination during which the Veteran denied having any knee pain. The examiner noted that medical records do show that the Veteran sought care for his right knee pain as early as 2010, but this was more than 15 years after his separation from service. Therefore, the Veteran's current diagnosis of right knee strain with patellofemoral pain syndrome and right knee status post arthroscopic surgery with meniscus repair is less likely than not to have incurred in or caused by an event/injury while in service. The Veteran has been diagnosed during the appeal with a right knee condition, so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. The weight of the evidence, however, does not support the claim for service connection for a right knee condition on a direct basis. The Board acknowledges the Veteran's assertions regarding his right knee condition; however, the July 2021 VA examiner provided an opinion that the currently diagnosed right knee conditions are less likely than not related to service. This opinion, which stands uncontroverted in the record and is based on the Veteran's assertions and the medical evidence specific to him, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). While the Veteran believes that his current right knee condition is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of knee conditions are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of any right knee condition, to include the assertion that his post-service problems are related to in-service right knee pain from equipment he had to carry, is not competent medical evidence. Moreover, whether the symptoms the Veteran reports he experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current right knee condition is not competent medical evidence. The Board finds the opinion of the July 2021 VA examiner to be significantly more probative than the Veteran's lay assertions. The weight of the evidence is also against the claim for service connection for a right knee condition on a presumptive basis under the legislation specific to Persian Gulf War veterans since right knee strain with patellofemoral pain syndrome and right knee status post arthroscopic surgery with meniscus repair are clinical diagnoses. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the claim for service connection for a right knee condition, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for a back condition The Veteran seeks service connection for a back condition. He asserts that he injured his back during service on January 23, 1992, and sought treatment. The Veteran subsequently testified that he did not injure his back, but that problems began in 1991 with tightness and spasm and later followed by pain, which he described as radiating from his butt all the way down to his feet. The Veteran reported that he went to sick call and was advised that he was having muscle spasms, which were treated with Tylenol and heat. He testified that he had continuous issues with that same tightness and radiating pain for the remainder of his time in service, which was chronic, and after discharge. He indicated that his current diagnosis of sciatica mirrored the in-service back problems he was having. Service treatment records do not document any specific complaints related to the back, although it is noted that the Veteran participated in weight reduction counseling. At the time of his January 1992 discharge examination, the Veteran denied recurrent back pain and clinical evaluation of his spine was normal. The post-service evidence of record includes an October 1992 VA examination, during which the Veteran reported frequent back spasms. No diagnosis was provided at that time. Private treatment records indicate that an October 2009 lumbar spine MRI showed herniations and disc bulge. The Veteran underwent a VA examination in September 2012, during which he was diagnosed with lumbar spine degenerative disc disease and right lumbar radiculopathy (sciatic neuritis). He reported that while on active duty, he had chronic low back pain from long ruck marches with heavy equipment. He experienced a gradual increase in back pain severity and frequency since that time and had had repeated bouts of sciatica going down the right leg to the toes. The examiner provided an opinion that since the diagnosed conditions have a clear and specific etiology and diagnosis, they are not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Since the September 2012 VA examiner did not address whether the diagnosed back conditions were directly related to service, the Veteran underwent another VA examination in July 2021 pursuant to the Board's February 2021 remand. Diagnoses of degenerative disc disease and intervertebral disc syndrome (IVDS) were provided. The Veteran reported that he had chronic lumbar daily back pain, which he described as aching followed by a radicular, electric pain that starts in his bilateral gluteal and shoots down into his feet. He indicated that he was not currently followed by anyone for his lumbar back pain, but occasionally saw his private primary care provider for it. The VA examiner provided an opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was based on review of the medical evidence specific to this Veteran, which included an October 1989 enlistment examination during which the Veteran denied any history of recurrent lumbar back pain, service treatment records that are silent for a chronic back condition while in service, and the January 1992 separation examination during which the Veteran denied having any recurrent back pain. The examiner noted that medical records do show that the Veteran sought care for his lumbar back pain as early as 2010, but this was more than 15 years after his separation from service. Therefore, the Veteran's current diagnosis of lumbar degenerative disc disease with IVDS is less likely than not to have incurred in or caused by an event/injury while in service. The Veteran has been diagnosed during the appeal with a back condition, so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. The weight of the evidence, however, does not support the claim for service connection for a back condition on a direct basis. The Board acknowledges the Veteran's assertions regarding his back condition; however, the July 2021 VA examiner provided an opinion that the currently diagnosed back conditions are less likely than not related to service. This opinion, which stands uncontroverted in the record and is based on the Veteran's assertions and the medical evidence specific to him, is afforded high probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. While the Veteran believes that his current back condition is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of a back condition are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of any back condition, to include the assertion that his post-service problems are related to in-service problems with tightness and spasm and later followed by pain, is not competent medical evidence. Moreover, whether the symptoms the Veteran reports he experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn, 12 Vet. App. at 301. Thus, the Veteran's own opinion regarding the etiology of his current back condition is not competent medical evidence. The Board finds the opinion of the July 2021 VA examiner to be significantly more probative than the Veteran's lay assertions. The weight of the evidence is also against the claim for a service connection for a back condition on a presumptive basis under 38 C.F.R. § 3.309(a) since there is no indication the Veteran had arthritis in his back within one year of his January 1992 discharge from active duty service, or on a presumptive basis under the legislation specific to Persian Gulf War veterans since degenerative disc disease, intervertebral disc syndrome, and right lumbar radiculopathy (sciatic neuritis) are clinical diagnoses. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the claim for service connection for a back condition, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 3. Entitlement to an initial compensable rating for pseudofolliculitis barbae The Board remanded this claim for a contemporaneous VA examination that included a discussion of the potential symptomatology that would be manifested during a flareup if the Veteran is not experiencing a flareup at the time of the examination. There is no indication this was addressed during the July 2021 VA examination, which is especially important since the condition was quiescent. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of the pseudofolliculitis barbae. The claims file should be reviewed by the examiner. All symptomatology associated with the pseudofolliculitis barbae should be reported and the examiner should address the potential symptomatology that would be manifested during a flareup if the Veteran is not experiencing a flareup at the time of the examination. If it is not feasible to discuss potential symptomatology during flareup, the examiner should explain why not. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.