Citation Nr: 18154121
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-41 258
DATE:	November 29, 2018
ORDER
Entitlement to service connection for a back disability is denied.
Entitlement to service connection for a bilateral hip disability secondary to a back disability is denied.
Entitlement to service connection for a bilateral knee disability is denied.
Entitlement to service connection for a traumatic brain injury (TBI), claimed as a cerebral concussion, is denied.
FINDINGS OF FACT
1. The Veteran’s back disability is not related to service. 
2. The Veteran’s bilateral hip disability is not related to his military service.
3. The Veteran’s bilateral knee disability is not related to his military service.
4. The Veteran’s headache condition is separate from his head injury.  
5. The Veteran suffered a closed head injury while on active duty.  
6. The Veteran does not have any residual effects from his in-service head injury.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a back disability have not been met.  38 U.S.C. §§ 1110,1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
2. The criteria for entitlement to service connection for a bilateral hip disability secondary to a back disability have not been met.  38 U.S.C. §§ 1110,1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
3.  The criteria for entitlement to service connection for a bilateral knee disability have not been met.  38 U.S.C. §§ 1110,1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
4. The criteria for entitlement to service connection for a TBI, claimed as a cerebral concussion, have not been met. 38 U.S.C. §§ 1110,1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1971 to May 1975 and from June 1982 to June 1986.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.
In August 2015, the RO granted service connection for migraine headaches.  
Service Connection
The Veteran contends that his back disability, bilateral hip disability, bilateral knee disability, and TBI are related to service.  
In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 
The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 C.F.R. §§ 3.309. 
In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought.  See 38 C.F.R. § 3.310 (2017).
Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).
In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra.  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998). 
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).
1. Entitlement to service connection for a back disability
The Veteran contends that his back disability is due to his military service.  
As to a current diagnosis, the Veteran’s back disability has been diagnosed as osteoarthritis of the lumbar spine.  
As to the in-service incurrence, the Board notes that the Veteran’s service treatment records reflect that the Veteran reported back pain on several different occasions while on active duty.  In addition, the Board also notes that the Veteran’s separation examinations from his first and second periods of active duty service were silent for a back disability.  See January 1975 and April 1986 separation examinations. 
Turning to the post-service medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in June 2013.  At the examination, the Veteran stated that he had back pain after a softball injury in 1972.  The Veteran added that he was hospitalized for this and started initially noticing pain with cold weather and he had pain with significant activity.  Lastly, the Veteran stated that he now has constant back pain.  Following the examination, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner opined that the Veteran was diagnosed with a low back strain in the military and this should be a self-limited condition.  The examiner concluded by stating that it would be hard to associate current degenerative changes on that process.  See June 2013 VA examination.  
In sum, the Board finds that service connection for a back disability is not warranted.  The Board has considered the Veteran’s lay assertions; however, the Veteran’s lay statements are outweighed by the findings of the VA examiner because the VA examiner has the medical training and expertise to provide an opinion regarding the nature and etiology of the Veteran’s disability.  Accordingly, the Board finds that the most probative evidence of record is the June 2013 VA examination which found that the Veteran’s back disability was not related to his military service.  Thus, for the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a back disability, must be denied.  
2. Entitlement to service connection for a bilateral hip disability secondary to a back disability.  
The Board notes that the Veteran seeks service connection on a secondary basis for a bilateral hip disability.  The Veteran believes that his hip disability is caused or made worse by his back disability.  
The Veteran nor his representative contend that the Veteran’s bilateral hip disability began in service or is directly related to his military service.  As the Veteran has limited his argument to the principles of secondary service connection, the Board will proceed to consider this limited aspect of his appeal.  See March 2012 VA-Form 21-526, and October 2015 attorney memorandum. 
In sum, the Board finds secondary service connection for a bilateral hip disability under 38 C.F.R. § 3.310 is not warranted.  The Board finds that this claim must be denied because the Veteran is not service connected for a low back disability.  In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  
3. Entitlement to service connection for a bilateral knee disability
As to a current diagnosis, the record reflects that the Veteran’s bilateral knee disability was diagnosed as bilateral knee pain.  
As to the in-service incurrence, the Board notes that the Veteran reported thigh and knee pain following a softball injury in April 1985.  In addition, the Board notes that the Veteran reported pain in his legs and low back when he suffered a closed head injury during a softball game in May 1985.  See April 18, 1985 and May 12, 1985 service treatment records.  Lastly, the Board notes that the Veteran’s separation examinations from his first and second periods of active duty service were silent for a bilateral knee disability.  See January 1975 and April 1986 separation examinations. 
Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in June 2013.  At the examination, the Veteran stated that he had knee pain in 1990 or before that.  Following the examination, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner opined that the Veteran had event of lumbar strain in military and cannot connect chronic knee pain to a strain event of the back in this setting.  There was no evidence of a debilitating back injury that would cause gait abnormalities that would affect knee or hip.  See June 2013 VA examination.  
In sum, the Board finds that service connection for a bilateral knee disability is not warranted.  The Board has considered the Veteran’s lay assertions; however, the Veteran’s lay statements are outweighed by the findings of the VA examiner because the VA examiner has the medical training and expertise to provide an opinion regarding the nature and etiology of the Veteran’s disability.  Accordingly, the Board finds that the most probative evidence of record is the June 2013 VA examination which found that the Veteran’s knee disability was not related to his military service.  Moreover, the Board acknowledges that the Veteran has also contended that his bilateral knee disability is due to his lower back condition.  That being said, secondary service connection is not applicable in this case because the Veteran has not been awarded service connection for a back disability.  Thus, for the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a bilateral knee disability, must also be denied.  
4. Entitlement to service connection for a TBI claimed as a cerebral concussion
The Veteran contends that his cerebral concussion condition is related to his military service.  
As to a current diagnosis, the Veteran’s cerebral concussion has been diagnosed as a TBI.  
As to the in-service incurrence, the Board notes that the Veteran suffered a closed head injury during a softball game while on active duty.  
Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in June 2013.  Following the examination, the examiner stated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner opined that the Veteran “more likely than not did have a mild TBI related to his softball injury in 1985 based on the treatment records and history, from which he recovered without residual.” The examiner then reported that the Veteran did not have any residual symptoms or neurological effects from the in-service TBI.  The examiner went on to explain that the Veteran attended a separate examination for his headaches and his headaches have not been attributed to his TBI in 1985 as they were documented prior to that event.  The examiner explained that the Veteran was treated for episodic headaches prior to the softball injury in service, some in association with acute infections such as sinusitis, but other times he was evaluated and treated for a headache with the ultimate diagnosis of tension-type headache.  See June 2013 VA examination.  
In sum, the Board finds that service connection for a cerebral concussion, diagnosed as a TBI, is not warranted.  The Board finds that while the June 2013 VA examination report reflects the Veteran did suffer a head injury in service, objective medical evidence does not establish the Veteran has a present disability, residuals, or symptoms related to that in-service event.  Moreover, the Board notes that the examiner indicated the Veteran’s headache condition is a separate disability not attributed to his in-service TBI.  Thus, given the fact that the Veteran does not have a present disability related to his in-service head injury, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a cerebral concussion, diagnosed as TBI, must be denied.  
 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Rescan, Associate Counsel 

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