DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

B. D. WATSON · 2025 · Case ID: 25003688

DENIED

Summary

The Veteran, who served in the U.S. Navy from September 1966 to July 1968, appeals the denial of service connection for a low back disability, claimed as secondary to his service-connected left knee disability. The Board reviewed the evidence, including service treatment records (STRs), VA treatment records, VA examinations, and the Veteran's statements. The STRs were silent regarding any low back disability complaints or treatment. A January 2013 VA treatment record noted continued left knee and back pain, and a November 2013 VA knee examination indicated a prior meniscectomy. The November 2013 VA back examination diagnosed lumbar spine degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS), with the Veteran reporting pain onset a few years after knee surgery. However, the Board found the November 2013 and January 2023 VA medical opinions inadequate because they did not fully account for the Veteran's statements about the onset of back pain relative to his knee surgery or the antalgic gait noted in treatment records. The Board concluded that the evidence did not establish that the low back disability manifested during service or within the presumptive period, nor did it establish a nexus to service or the service-connected left knee condition. The Veteran's lay statements regarding medical causation were deemed incompetent. The Board denied service connection for the low back disability.

Rationale

Service treatment records are silent for low back disability complaints or treatment.; Veteran's statements about back pain onset relative to knee surgery and antalgic gait were not fully accounted for in VA opinions.; VA opinions were found inadequate; however, the evidence persuasively weighs against a nexus to service or the service-connected left knee disability.; Lay statements regarding medical causation were deemed incompetent.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

15-45 520

Full Decision Text

Citation Nr: 25003688
Decision Date: 03/18/25 Archive Date: 03/18/25

DOCKET NO. 15-45 520
DATE: March 18, 2025

ORDER

Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability, is denied.

FINDING OF FACT

The evidence persuasively weighs against finding that the Veteran's low back disability began during active service or within one year of service, is otherwise related to an in-service injury, event, or disease, or is the result of a service-connected disability.

CONCLUSION OF LAW

The criteria for service connection for a low back disability due to service or service-connected left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from September 1966 to July 1968.

The matter comes to the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

This issue was last before the Board in August 2023, where the Board issued a decision remanding the issue for further development. The issue has since returned to the Board for appellate review.

The January 2020 Board decision notes that the Veteran had requested a hearing before a Veterans Law Judge. A hearing was scheduled for August 2019. The hearing request was considered withdrawn when the Veteran failed to appear for the hearing.

Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability, is denied.

The Veteran asserts that he is entitled to service connection for a low back disability on a secondary basis. However, as outlined below, the evidence persuasively weighs against finding that the Veteran's low back disability manifested during, within the year following, or as a result of service, or as the result of service-connected left knee disability.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3
38 C.F.R. §§ 3.307, 3.309(a).

Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990).

The service treatment records (STRs) are silent for any complaint, treatment, or diagnosis of a low back disability.

In a January 2013 VA treatment record, the Veteran complained of continued left knee and back pain.

On the November 2013 VA knee examination, the examiner indicated the Veteran underwent a meniscectomy in May 1968.

On the November 2013 VA back examination, the examiner indicated the Veteran has a diagnosis of lumbar spine degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS). The Veteran reported that he has experienced low back pain for many years. He stated the back pain began a few years after his left knee surgery. He stated the surgery changed he gait. He stated he has experienced symptoms daily. He stated he wakes up stiff and in pain. He stated he has a constant dull pain. He stated he is unable to stand for any length of time.

The November 2013 VA examiner opined that it is less likely than not that the Veteran's low back disability is the result of service-connected left knee disability. The examiner reasoned that the DDD is not caused by or related to service-connected left knee disability. There is no medical nexus. It is consistent with exogenous obesity and natural aging. A medical guide newsletter from July/August 2009 shows that age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of the disc) were the predominant predictors of degenerative disc disease.

In a January 2013 VA treatment record, the Veteran reported having left knee and back pain.

In a January 2016 VA treatment record, the medical provider observed the Veteran to have an antalgic gait due to left knee pain.

In the April 2018 substantive appeal, the Veteran stated that a private treatment provider found the Veteran's left knee pain and back pain to be related to the removal of the medical meniscus and that when one favors a bad knee, the pain is generated over time especially over a span of 50 years.

In an April 2018 Congressional, the Veteran stated he has experienced back pain for 50 years. He stated he has daily pain in the left knee and low back.

In March 2022 the VA examination was cancelled because of an inability to contact the Veteran.

In October 2022 the VA examination was cancelled because the Veteran did not attend the examination.

In November 2022 the VA examination was cancelled because the Veteran refused the examination.

In a January 2023 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's low back disability is the result of service-connected left knee disability. The examiner reasoned that on physical examination of the knees the muscle strength is normal, there is no evidence of crepitus, muscle atrophy, ankylosis, recurrent subluxation or persistent instability, a leg length discrepancy. The examiner also stated there is no use of an assistive device as a normal mode of locomotion. The examiner also stated that multiple medical notes documents that the Veteran had a
was cancelled because the Veteran did not attend the examination.

In November 2022 the VA examination was cancelled because the Veteran refused the examination.

In a January 2023 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's low back disability is the result of service-connected left knee disability. The examiner reasoned that on physical examination of the knees the muscle strength is normal, there is no evidence of crepitus, muscle atrophy, ankylosis, recurrent subluxation or persistent instability, a leg length discrepancy. The examiner also stated there is no use of an assistive device as a normal mode of locomotion. The examiner also stated that multiple medical notes documents that the Veteran had a normal gait. The examiner stated that the level of pathology of the Veteran's knee condition makes it less likely to cause or have significant impact on his back condition. The examiner stated that the Veteran's disc disease is more likely due to changes in the disc that occur with aging.

The January 2023 VA examiner also opined that the Veteran's low back disability is less likely than not aggravated beyond its natural progression by the left knee disability. The examiner reasoned that the medical records are silent for any evidence of aggravation of the Veteran's low back disability due to his knee condition and there is no evidence of a change in treatment modality that comes with worsening of the Veteran's back condition.

In October 2024 the VA examination was cancelled because the Veteran did not attend the examination.

The Board finds the November 2013 and January 2023 VA medical opinions to be inadequate as neither opinion account for a VA treatment record that shows the Veteran to have an antalgic gait due to the left knee disability or the Veteran's statements that the low back pain began within a few years of the left knee surgery. Therefore, the Board finds the VA medical opinions to not be probative or persuasive.

Based on the foregoing, there is no evidence that the Veteran's low back disability was manifested in service or to a compensable degree in the first year following his separation from service. The first indication of a low back disability occurred in 1971, over two years after separation from service. Consequently, service connection for a low back disability on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent to show that he has suffered from a low back disability continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).

There is also no evidence that the Veteran's low back disability is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating the low back disability to service. Specifically, at the November 2013 VA back examination, the Veteran stated that his low back pain began a few years after surgery to the left knee in 1968. The Board finds this persuasive.

Also, there is no evidence that the Veteran's low back disability is the result of service-connected left knee disability and the resulting abnormal gait. The Veteran's post-service treatment records are silent for an opinion relating the low back disability with the Veteran's left knee disability. There is no competent evidence in the record that addresses this question.

In the August 2023 Board decision, the Board directed the AOJ to provide the Veteran with a new VA examination and opinion to address the issue of secondary service connection. The AOJ scheduled a VA examination for October 2024; however, the Veteran did not appear for the examination or provide a good cause reason for his failure to appear to the examination. The Board notes that the duty to assist is a two-way street, and the Veteran has the responsibility to present and support a claim for disability benefits. 38 U.S.C. § 5107; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). This includes reporting for an examination. As the Veteran failed to attend his in-person examination in March 2022, October 2022, November 2022, and October 2024, VA has fulfilled its obligation to comply with the duty to assist. As, such no adequate VA examinations or VA opinions are available for consideration.

Further, the Veteran's own statements relating his low back disability to the left knee disability are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether degenerative disc disease is the result of a left knee disability and the resulting abnormal gait. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, degenerative disc disease is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation.

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In light of the foregoing, the Board concludes that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability. Accordingly, it must be denied.

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Thompson, 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.

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