Citation Nr: 18131214
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-15 015
DATE:	August 31, 2018
ORDER
1. Entitlement to service connection for a low back disability is denied.
2. Entitlement to service connection for a left knee disability is denied.
3. Entitlement to service connection for a right knee disability is denied.
4. Entitlement to service connection for a left ankle disability is denied.
5. Entitlement to service connection for a right ankle disability is denied.
6. Entitlement to service connection for left lower extremity radiculopathy is denied.
7. Entitlement to service connection for right lower extremity radiculopathy is denied.
FINDINGS OF FACT
1. The preponderance of the evidence is against a finding that the Veteran’s low back disability was incurred in or otherwise related to service. The Veteran’s low back disability was not chronic in service, did not manifest to a compensable degree within one year of service, and was not continuous since service.
2. The preponderance of the evidence is against a finding that the Veteran’s left knee disability was incurred in or otherwise related to service. The Veteran’s left knee disability was not chronic in service, did not manifest to a compensable degree within one year of service, and was not continuous since service.
3. The preponderance of the evidence is against a finding that the Veteran’s right knee disability was incurred in or otherwise related to service. The Veteran’s right knee disability was not chronic in service, did not manifest to a compensable degree within one year of service, and was not continuous since service.
4. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left ankle disability, a right ankle disability, left lower extremity radiculopathy, or right lower extremity radiculopathy.
CONCLUSIONS OF LAW
1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).
2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).
3. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).
4. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
5. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
6. The criteria for service connection for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
7. The criteria for service connection for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from June 1963 to June 1965.
In the April 2015 VA Form 9, the Veteran requested a Board hearing. In a May 2016 statement, the Veteran withdrew his request for a hearing, therefore the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). The Veteran currently has arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a); thus, 38 C.F.R. § 3.303(b) is applicable.
Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation.
1. Entitlement to service connection for a low back disability
The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a low back disability on either a direct or presumptive basis. The reasons follow.
The Veteran has been diagnosed with a low back disability, and thus there is evidence of a current disability. For example, the Veteran has been variable diagnosed with multilevel degenerative disk disease, borderline L2-3 central canal stenosis, lumbar spondylosis with facet arthropathy, and lumbar degenerative disc disease.
However, as to direct service incurrence, the Veteran’s claim fails on both the in-service disease or injury and the nexus to service. The service treatment records (STRs) show that the Veteran was found to have clinically normal evaluations of his spine at his entrance examination in June 1963 and at his separation examination in April 1965. In the April 1965 Report of Medical History, the Veteran described his health as “excellent.” The Veteran’s service records do not otherwise support complaints, symptoms, diagnosis or treatment for a low back disability. The Veteran’s clinically normal assessment of his spine during service is evidence against a finding that he had a low back disability in service.
As to a nexus to service, in an April 2011 VA treatment record, the Veteran stated that he has had low back pain since an injury in the 1970s. In a July 2012 VA treatment record, the Veteran reported that he injured his back in 1978 when he was working as a detective. These reports by the Veteran establishes that the Veteran’s low back disability did not have its onset in service, as the Veteran separated from service in 1965. 
The Veteran’s contention that his low back disability was incurred in service is outweighed by the probative value of Veteran’s medical records. Here, the records from April 2011 and July 2011 establish, based on the Veteran’s own reports, that he incurred the injury to his low back after service, and outweigh the Veteran’s more recent assertions that the incurred the injury to his low back during service. The Veteran’s statements in April 2011 and July 2011 to treating clinicians are also more reliable as motivated by a desire for accurate medical treatment. It is sufficient for the Board to conclude that the credibility of the Veteran’s contention of in-service incurrence of a low back disability is substantially impeached by a prior contradicting statement and by medical findings of record.
To the extent that the Veteran had implied that a low back disability had its onset in service, his service treatment records do not support such a finding. To the extent that the Veteran has implied that a low back disability is otherwise related to service, his allegation is outweighed by the April 2011 and July 2012 VA treatment records, in which the Veteran states that he incurred a low back injury after service.
Given the above evidence, the Board finds that the Veteran did not incur an event, injury, or disease related to his current low back disability in service and that his low back disability disorder did not manifest during service or within one year of separation from service.
Furthermore, the evidence of record does not demonstrate that the Veteran’s symptoms have been continuous since separation from service in June 1965. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disorder for approximately 13 years following service discharge. As stated by the Veteran, the injury originally occurred in 1978. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 13 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.
In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for a low back disability. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence.
2. Entitlement to service connection for a left knee disability
3. Entitlement to service connection for a right knee disability
The evidence and analysis for the claims for entitlement to service connection for a left knee disability and for a right knee disability are the same, and for the sake of this analysis shall be referred to as a bilateral knee disability.
The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a bilateral knee disability on either a direct or presumptive basis. The reasons follow.
The Veteran has been diagnosed with a bilateral knee disability, and thus there is evidence of a current disability. For example, the Veteran has variably been diagnosed with osteoarthritis in both knees, bilateral knee chondromalacia patella, and left knee patellofemoral arthritis.
However, as to direct service incurrence, the Veteran’s claim fails on both the in-service disease or injury and the nexus to service. 
The STRs show that the Veteran was found to have clinically normal evaluations of his lower extremities at his entrance examination in June 1963 and at his separation examination in April 1965. In the April 1965 Report of Medical History, the Veteran specifically denied ever having or having then “‘trick’ or locked knee.” The Veteran’s service records do not support complaints, symptoms, diagnosis or treatment for a bilateral knee disability. The Veteran’s clinically normal assessment of his lower extremities in service, including service discharge, and his denial of a history of trick or locked knee is evidence against a finding that he had a bilateral knee disability in service.
The Veteran is not medically trained and is therefore not qualified to competently opine about medical etiology. Although the Veteran claims that his bilateral knee disability is related his service, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities. 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. However, knee disabilities require specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The origin or cause of the Veteran’s bilateral knee disability is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran’s lay assertion is not competent to establish a nexus.
To the extent that the Veteran had implied that a bilateral knee disability had its onset in service, his service treatment records, including his denial of a history of knee problems at service discharge, refute such a finding. 
Given the above evidence, the Board finds that the Veteran did not incur an event, injury, or disease related to his current bilateral knee disability in service and that his bilateral knee disability disorder did not manifest during service or within one year of separation from service.
Furthermore, the evidence of record does not demonstrate that the Veteran’s symptoms have been continuous since separation from service in June 1965. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disorder for approximately 47 years following service discharge. As indicated in the Veteran’s VA treatment records, he first began seeking treatment for his bilateral knee disability in 2012. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 47 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.
The Veteran contends that his bilateral knee disability is proximately due to or aggravated by his low back disability. However, the Veteran is not service-connected for a low back disability, and thus is not entitled to service connection on this theory of entitlement. 
In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for a bilateral knee disability. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence.
4. Entitlement to service connection for a left ankle disability
5. Entitlement to service connection for a right ankle disability
The evidence and analysis for the claims for entitlement to service connection for a left ankle disability and for a right ankle disability are the same, and for the sake of this analysis shall be referred to as a bilateral ankle disability.
The question for the Board in this case 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 or is caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there needs to be competent evidence of a current disability.
The Board concludes that the Veteran does not have a current diagnosis of a bilateral ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d).
Further, despite consistent treatment from February 2010 to July 2017, VA treatment records do not contain a diagnosis of a bilateral ankle disability.
For example, in a May 2011 VA treatment record, the Veteran denied any ankle pain. In a May 2012 VA treatment record, the Veteran complained of recent ankle pain, but was not diagnosed with an ankle disability. In VA treatment records from July 2012 and March 2013, the Veteran’s ankle reflexes were reduced. However, in VA treatment records from December 2012 and September 2013, the Veteran’s ankle reflexes were normal. Despite this variability, and numerous examinations of the Veteran’s ankles, the record does not support a diagnosis of a bilateral ankle disability.
While the Veteran believes he has a current diagnosis of a bilateral ankle disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Consequently, the Board gives more probative weight to the competent medical evidence.
In sum, without competent evidence of a current disability, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for a bilateral ankle disability, and the claim is denied.
6. Entitlement to service connection for left lower extremity radiculopathy
7. Entitlement to service connection for right lower extremity radiculopathy
The evidence and analysis for the claims for entitlement to service connection for left lower extremity radiculopathy and for right lower extremity radiculopathy are the same, and for the sake of this analysis shall be referred to as a bilateral lower extremity radiculopathy.
The question for the Board in this case 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 or is caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there needs to be competent evidence of a current disability.
The Board concludes that the Veteran does not have a current diagnosis of a bilateral lower extremity radiculopathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d).
Further, despite consistent treatment from February 2010 to July 2017, VA treatment records do not contain a diagnosis of bilateral lower extremity radiculopathy. 
For example, in a September 2012 VA treatment record, an EMG did not show radiculopathy. The examiner noted that there was no electrodiagnostic evidence of an acute, subacute, or chronic right lumbosacral radiculopathy. An April 2013 VA treatment record indicated that the Veteran’s straight leg test for radiculopathy was negative, and that the Veteran did not experience radicular pain. Accordingly, the evidence does not support a diagnosis of bilateral lower extremity radiculopathy.
While the Veteran believes he has a current diagnosis of bilateral lower extremity radiculopathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Consequently, the Board gives more probative weight to the competent medical evidence.
In sum, without competent evidence of a current disability, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for a bilateral lower extremity radiculopathy, and the claim is denied.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Husain, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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