Citation Nr: 18160574
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 12-02 573
DATE:	December 27, 2018
ORDER
Entitlement to service connection for degenerative arthritis of the spine is denied.

REMANDED
Entitlement to service connection for osteoarthritis of the bilateral knees is remanded.

FINDING OF FACT
The preponderance of the evidence is against a finding that the Veteran’s degenerative arthritis of the spine began during active service, or is otherwise related to an in-service injury or disease.
CONCLUSION OF LAW
The criteria for entitlement to service connection for degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1971 to July 1974. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied reopening the Veteran’s spine and left knee service connection claims and denied service connection for a right knee disability.  These matters were remanded in December 2014 for additional development.  In its April 2017 decision, the Board reopened the Veteran’s claims of service connection for spine and left knee disabilities and remanded all claims for additional development.   
Service Connection
Entitlement to service connection for degenerative arthritis of the spine is denied.
Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. 
To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
The Veteran claims that his back disability is related to an in-service truck accident that occurred in Okinawa, Japan in 1974.  A January 1973 service treatment record notes that the Veteran received a puncture wound in the lumbar area while riding in the rear of a truck.  He was advised to return if he noted any unusual pain, but there is no further indication that he sought additional treatment.  His June 1974 separation examination was normal.
Following a July 2009 VA spine examination, the examiner determined that the Veteran’s back disability was less likely due to a truck accident in service, noting that while the injury could “perimpose (sic) arthritis[,]” the injury more than 30 years ago was not less likely to cause his degenerative back condition.  In its April 2017 remand, the Board found these opinions speculative at best given the examiner’s uncertainty that the trauma to the back might predispose the Veteran to arthritis.  
On June 2017 VA examination, the examiner reviewed the Veteran’s record and noted documentation of a truck accident in service with a complaint of acute back injury.  She noted an absence of later back complaints or treatment following the initial accident and a normal spine examination at service separation.  Thus, given the “lack of evidence of continued back complaints other than immediately after the accident in service,” she opined that the Veteran’s degenerative arthritis of the lumbar spine is less likely due to his back pain in service.
The Board has considered the Veteran’s statements about the in-service accident which he contends is related to his current spine disability. The Veteran stated that he began experiencing severe lower back pain immediately. The Veteran noted that he had one episode of severe lower back pain in 1976 which resolved on its own in several weeks. He has since complained of intermittent lower back pain since 1989 after he started to work as a truck driver. 
The Board assigns the June 2017 VA medical opinion significant probative weight as the examiner demonstrated a familiarity with the Veteran’s record, used the correct standard of review, and included an adequate rationale to support her conclusion. Further, the examiner’s findings are consistent with the Veteran’s medical history and credible lay statements. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000).
To the extent that the Veteran has asserted that his current degenerative arthritis of the spine is related to his service, the Board finds that he is not qualified (“competent”) to offer an opinion as to the cause of this disability because this determination requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay persons can be competent to diagnose and identify the cause of simple conditions such as a broken leg but not complex medical conditions such as cancer).
Accordingly, in the absence of competent probative evidence relating the Veteran’s current degenerative arthritis of the spine to his active service, the claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

REASONS FOR REMAND
Service connection for osteoarthritis of the bilateral knees is remanded.
Although the Board regrets the additional delay, further development of the record is necessary to comply with VA’s duty to assist the Veteran in the development of facts pertinent to his remaining claims. See 38 C.F.R. § 3.159.
Following the Board’s April 2017 remand, the RO obtained and associated with the claims file treatment records from Brockton VA Medical Center (VAMC).  Those records, however, indicate that the Veteran received treatment for his left knee from Carney Hospital some time between 1978 and October 1980.  Records from Carney Hospital are not associated with the record, and do not appear to have been sought. As such records may contain pertinent information, they should be obtained. 
The matters are REMANDED for the following action:
1. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for his right and left knee disabilities since his discharge from service (records of which are not already associated with the claims file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation, to specifically include records from Carney Hospital.  With his cooperation (by providing releases) the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received.
(Continued on the next page)
 
2. Review the record and arrange for any additional development deemed necessary.
 
T. MATTA
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. McKone, Law Clerk

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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.