LUMBOSACRAL OR CERVICAL STRAIN

Summary

The Veteran, an Army Veteran who served from March 1982 to March 1985, appealed the denial of service connection for right and left knee conditions, and an initial disability rating in excess of 10 percent for lumbosacral strain. The Board dismissed the lumbosacral strain issue as the Veteran withdrew it due to receiving an increased rating from 10% to 40% prior to the hearing. For the knee conditions, the Board acknowledged favorable findings from the agency of original jurisdiction (AOJ) that service treatment records noted complaints of left and right knee pain during service. However, the AOJ also found no persistent disability in service and no current diagnosed disability. The Board noted that while the Veteran is competent to describe his knee pain, a diagnosis of a knee condition is a medical determination not capable of lay observation. The VA examiner in May 2021 found no pathology, normal x-rays, and no instability for either knee, opining that the conditions were less likely than not related to service. The Board found the evidence persuasively showed no current diagnosed disability for the knees, and the Veteran's lay statements, while describing pain, did not establish impairment affecting earning capacity, as he stated he "deals with it" and it doesn't stop him from living his life. The Board concluded service connection was not warranted for the knee conditions. The benefit of the doubt doctrine was not applicable as the evidence weighed against the claims. The Board encouraged the Veteran to file a supplemental claim for the knee issues with any new evidence.

Rationale

Withdrawal of issue by Veteran; Received increased rating prior to hearing

Full Decision Text

Citation Nr: A26039214
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210702-169846
DATE: April 28, 2026

ORDER

Entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is dismissed.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to service connection for a left knee disorder is denied.

FINDINGS OF FACT

1. On May 22, 2025, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal seeking entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is requested.

2. The evidence of record persuasively weighs against finding that the Veteran has had a right knee disorder at any time during or approximate to the pendency of the claim, to include an impairment that rises to a level to affect earning capacity.

3. The evidence of record persuasively weighs against finding that the Veteran has had a left knee disorder at any time during or approximate to the pendency of the claim, to include an impairment that rises to a level to affect earning capacity.

CONCLUSIONS OF LAW

1. The criteria for dismissal of entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for right knee disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for left knee disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served in the United States Army from March 1982 to March 1985.

The matter is on appeal to the Board of Veterans' Appeals (Board) from a May 2021 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Thus, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 22, 2025.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is dismissed.

On May 22, 2025, prior to the promulgation of a decision in the present appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain was requested. 

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38?C.F.R. §?20.205. Withdrawal may be made by the appellant or an authorized representative. Id. 

A written withdrawal must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if
 notification from the Veteran that a withdrawal of the issue of entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain was requested. 

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38?C.F.R. §?20.205. Withdrawal may be made by the appellant or an authorized representative. Id. 

A written withdrawal must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if other than the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 20.205(b)(1). 

During the Veteran's hearing, the Veteran's representative indicated that the "lumbar spine" issue had, in the intervening time between the Notice of Disagreement and hearing, been "increased and that they intend to withdraw that issue in writing." See May 2025 Hearing Transcript. Immediately following the hearing, the Veteran submitted a written statement formally withdrawing the appealed issue, noting, specifically, that a Board "hearing was held on 5/22/2025," that he "had 3 issues and 1 issue was withdrawn," which he noted was "for . . .  lumbosacral (low back condition)," and indicated that the withdrawal was "due to receiving an increase prior to hearing from 10% to 40% on 8/10/24." See May 2025 VA 21-4138.

Thus, the issue of entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain has been validly withdrawn and there remain no allegations of errors of fact or law for appellate consideration with regard to that issue.  

Accordingly, the Board does not have jurisdiction to review that specific issue on appeal, and it is dismissed.  

However, as the Veteran stated that the issues related to his right and left knee are expressly not withdrawn, the Board will proceed to adjudicate those issues below. Moreover, the dismissal herein related to the Veteran's lower back condition in no way prejudices the increased disability rating granted to the Veteran in the intervening rating decision cited by the Veteran during his hearing and in his letter of withdrawal.  

2. Entitlement to service connection for a right knee disorder is denied.

3. Entitlement to service connection for a left knee disorder is denied.

The Veteran contends that he is entitled to grants of service connection for right and left knee conditions, which he argues are due to his service as an infantryman. See, e.g., March 2021 VA 21-526EZ. 

Service connection may be granted for disability due to a disease or injury incurred in or aggravated by active military service. 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303. Service connection may be granted for a disease initially 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(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a?nexus between the current disability and the disease or injury in service.?Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004).?

The Board notes that there are favorable findings in this matter. The AOJ conceded that the "evidence shows that a qualifying event, injury, or disease had its onset during . . . service," noting that "[s]ervice treatment records dated February 25, 1983[,] note a complaint of left knee pain" as well as "a complaint of right knee pain." See May 2021 Rating Decision. Under the AMA, the Board is bound by favorable findings made by the AOJ. See 38 C.F.R. § 3.104(c).

The Board notes, however, that though the AOJ conceded that "service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed," the AOJ further found that "the medical evidence supports the conclusion that a persistent disability was not present in service," and, moreover, "[t]he evidence does not show a current diagnosed disability."
 . . . service," noting that "[s]ervice treatment records dated February 25, 1983[,] note a complaint of left knee pain" as well as "a complaint of right knee pain." See May 2021 Rating Decision. Under the AMA, the Board is bound by favorable findings made by the AOJ. See 38 C.F.R. § 3.104(c).

The Board notes, however, that though the AOJ conceded that "service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed," the AOJ further found that "the medical evidence supports the conclusion that a persistent disability was not present in service," and, moreover, "[t]he evidence does not show a current diagnosed disability." See May 2021 Rating Decision. 

Thus, the Board turns now to the preliminary question of whether the Veteran has a current or present left or right knee disability.   

The Board notes that the Veteran was not diagnosed with a specific left or right knee disability during service nor, during the permissible evidentiary window, does the evidence-medical or lay-suggest the Veteran has been diagnosed with a left or right knee condition post-service.

In an appeal where there is no formal diagnosis, there must be competent evidence specific to the Veteran tending to show that their impairment rises to a level to affect earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, not every defect, infirmity, or disorder is a compensable disability. See Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003). Moreover, in the absence of proof of a present disability there can be no valid claim. See Brammer v. Brown, 3?Vet. App.?223, 225 (1992). 

In support of the above finding, the Board notes that the Veteran was provided a VA examination in May 2021, in which the examiner noted that "[f]or the claimant's claimed condition of left knee condition there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis," and, likewise, "[f]or the claimant's claimed condition of right knee condition there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis." See May 2021 Disability Benefits Questionnaire. The examiner reported that the Veteran's examination and "x-rays [were] normal," and that "[t]here [was] no pathology to render a diagnosis for a bilateral knee condition at [that] time." See id. Moreover, the examiner noted "[t]here [was] no lateral instability of the right knee," "no findings of joint instability of the right knee," "right knee anterior instability test result [was] normal," "right knee posterior instability test result [was] normal," "right knee medial instability test result [was] normal," and "right knee lateral instability test result [was] normal." See id. Further, the examiner noted that there was "no lateral instability of the left knee," as "[t]here [were] no findings of joint instability of the left knee," the "left knee anterior instability test result [was] normal," "left knee posterior instability test result [was] normal," "left knee medial instability test result [was] normal," and "left knee lateral instability test result [was] normal." See id. Additionally, the examiner opined that "[t]here [were] no findings of chronic exertional compartment syndrome of the right lower extremity," and "no findings of chronic exertional compartment syndrome of the left lower extremity." See id.

Accordingly, the examiner opined that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness," as "[t]here is no pathology to render a diagnosis for a knee condition." See May 2021 C&P Examination. "Therefore," the examiner opined, "it is less likely than not that the [presently] claimed . . . knee condition was incurred in or caused by" the in-service bilateral knee complaints of pain during service. See id.

Nevertheless, the Board acknowledges the Veteran's contention that he has a present left and right knee condition that is due to his service as an infantryman. See, e.g., March 2021 VA 21-526EZ.

The Board notes that laypersons are competent to speak to symptomatology when those symptoms are readily observable. See, e.g., Layno v. Brown, 6?Vet. App.?465 (1994).  

As such, though the Veteran is competent to describe symptoms of right and left knee pain, a defined musculoskeletal condition, to include a diagnosable
] claimed . . . knee condition was incurred in or caused by" the in-service bilateral knee complaints of pain during service. See id.

Nevertheless, the Board acknowledges the Veteran's contention that he has a present left and right knee condition that is due to his service as an infantryman. See, e.g., March 2021 VA 21-526EZ.

The Board notes that laypersons are competent to speak to symptomatology when those symptoms are readily observable. See, e.g., Layno v. Brown, 6?Vet. App.?465 (1994).  

As such, though the Veteran is competent to describe symptoms of right and left knee pain, a defined musculoskeletal condition, to include a diagnosable knee condition, is not capable of lay observation, and, as such, the Veteran has not been found to be competent to establish a diagnosis. This is because the determination as to the presence of the disability is medical in nature, and is, thus, not capable of lay observation. Savage v. Gober, 10?Vet. App.?488, 498 (1997) (finding that on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21?Vet. App.?303 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). 

Where, as here, the determinative issues involve questions of a medical diagnosis not capable of lay observation, and are, therefore, medical in nature, and of medical causation, that is, medical evidence of an association or link between the current disabilities and an established disease, injury, or event in service, competent medical evidence is required to substantiate the claims. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. 

As a lay person, the Veteran is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis not capable of lay observation, nor is he qualified to opine as to medical causation. For this reason, the Board does not find the Veteran's statements, relating to a present diagnosis of a bilateral knee condition, nor those related to the continuous presence of that medical condition from service to the present, as competent evidence to substantiate the claim. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Lastly, as to the question of whether, in the absence of a medical diagnosis, the Veteran's left and right knee symptoms manifest in impairment that rises to a level to affect earning capacity, the Board acknowledges various lay statements which indicate that the Veteran's knee pain impacts his life. However, the Board concludes that the evidence does not support a finding of impairment sufficient to affect earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 

In so finding, the Board notes that the Veteran, while detailing his left and right knee pain, indicated that he "deal[s] with it," that he does not "let it affect [him] because [he] know[s]" he has "to make a living." See May 2021 Disability Benefits Questionnaire. Moreover, the VA examiner opined that the Veteran's right and left knee symptoms do not impact his "ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)." See id. Further, in his May 2025 hearing, the Veteran noted that he "adapt[s] to the pain," including during the hearing itself, and that it was not "gonna stop [him] from living [his] life," though he "might do it a little bit slower, but that's how it is." See id. The Veteran further noted that though "[i]t's hard for [him] to kind of get going, especially . . .  if . . . sitting down," he "do[es] it." See id. Lastly, though the Veteran indicated that he "worked in the post office, and as the years went on, it got rougher for [him] to kind of walk and push things," and in his later year he "started taking sick call, staying out on sick leave," he associated this not solely to his knees but also to his "back and stuff." See id. 

The Board notes that the Veteran is separately service-connected for a back condition. See, e.g., October 2024 Rating Decision. As such, and in light of the lay content
t's hard for [him] to kind of get going, especially . . .  if . . . sitting down," he "do[es] it." See id. Lastly, though the Veteran indicated that he "worked in the post office, and as the years went on, it got rougher for [him] to kind of walk and push things," and in his later year he "started taking sick call, staying out on sick leave," he associated this not solely to his knees but also to his "back and stuff." See id. 

The Board notes that the Veteran is separately service-connected for a back condition. See, e.g., October 2024 Rating Decision. As such, and in light of the lay contentions and medical evidence permissibly reviewable in the present matter as detailed above, the Board finds that the Veteran's left and right knee symptoms do not manifest in impairment that rises to a level to affect earning capacity as the Veteran repeatedly noted that the pain does not prevent him from "mak[ing] a living," or "stop [him] from living [his] life," and assertions to the contrary cannot be distinguished from alternative causes-to include other service-connected conditions. This is a finding of fact by the Board. 

Accordingly, based on the foregoing, and again recognizing the limits imposed on the Board by the evidentiary window in the present matter, the Board finds that the record evidence permissibly on review persuasively shows that the Veteran does not have a current or present left or right knee condition. Therefore, the Board concludes that service connection is not?warranted, and?no?further discussion of the remaining elements is necessary.?See Watson v. Brown, 4?Vet. App.?309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an?injury?or a disease incurred in service.");?see also Coburn v. Nicholson, 19?Vet. App.?427, 431 (2006)?(finding that the absence of any one element will result in?denial of service?connection).?? 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

As a final matter, and as alluded to repeatedly above, the Board notes that additional evidence potentially relevant to the present matters was associated with the record outside the permissible review window allowed under the AMA. However, a remand seeking development absent a corresponding pre-decisional duty to assist error is improper, and, as such, the Board is barred herein from remanding the present claim for development of the Veteran's contention that he is entitled to service connection for left and right knee conditions. See 38 C.F.R. § 20.802(a). 

However, the Board emphasizes that this is not the end of the road for his bilateral knee claims. The Board highly encourages the Veteran to file a supplemental claim with the AOJ identifying the supporting evidence already of record which the AOJ and Board were unable to review, so that the evidence already of record related to the claim of service connection may be properly reviewed. See 38 C.F.R. § 3.2501. Alongside that supplemental claim, the Veteran may also submit new and relevant evidence not already associated with the record, if available to the Veteran, or identify new and relevant evidence not in the possession of the Veteran but which, if associated with the record, may help to corroborate the Veteran's claim. Again, instructions for doing so are included with this decision.

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C.W. Hall, Associate 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.