Citation Nr: 1307396 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-19 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from January 1985 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. FINDINGS OF FACT 1. The Veteran's low back disorder is causally related to active service. 2. The Veteran's bilateral knee disorder is causally related to active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral knee disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). In light of the Board's favorable determinations with respect to the claims, no further discussion of the duties to notify and assist is needed at this time. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be also granted for any disease 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). Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran contends that he injured his back and knees during a motor vehicle accident in service when a two and a half ton truck he was riding in flipped onto its side and another soldier landed on his back and a food container hit his right knee. He also contends that he reinjured the back in service while answering the telephone and numerous times while lifting ammunition and changing tires. Lastly, he contends that, although he had continuing problems with his back and knees in service, he did not seek treatment but rather dealt with the pain and treated himself. The Veteran's service treatment records indicate that he was involved in a motor vehicle accident in April 1987. An April 9th emergency care treatment note reflects complaints of a sore and stiff left leg after the truck the Veteran was riding in turned over and a food container hit the leg. There was a laceration on the left leg. He was diagnosed with a possible blood hematoma. The note also reflects complaints of right foot numbness. He had a slight limp favoring the right leg. There were two small abrasions on the right anterior upper third of the tibia. He had full range of motion of the lower extremity and was noted to be neurovascularly intact. He was diagnosed with a contused right anterior tibia. An April 10th unit dispensary note reflects complaints of right knee pain for the past two days. The Veteran reported being in a deuce accident two days ago and being struck in the right knee. He complained of numbness and swelling in the right leg from the knee down. He had good range of motion. He was diagnosed with a possible fracture of the right knee and referred to a physician assistant. The note continues with an entry by a physician assistant, who reported that x-rays of the right tibia and fibula were negative, and provided a diagnosis of a contusion. A June 29, 1988, unit dispensary note reflects complaints of lower back pain since earlier that morning when the Veteran got up to answer the telephone. There was pain upon palpation of the lower back and slight pain upon hitting the right foot. Straight leg raise test was negative. The back pain did not radiate into the legs. He was diagnosed with a possible lower back strain and advised against physical training for 72 hours. A November 1990 letter written by the Veteran to his spouse reflects that he pulled his back the day before lifting a truck tire. In an April 2010 statement, a fellow soldier related that he had served with the Veteran and had been told of the motor vehicle accident by the Veteran and the other soldiers involved. He stated that the soldier who had fallen on the Veteran was a heavy-set individual. He added that he had witnessed the back pain the Veteran was in following the accident. Given the above, the service treatment records do not document an injury to the Veteran's back. However, they do show that he was involved in a motor vehicle accident. Moreover, a fellow soldier has not only relayed his recollection of being told in service of the Veteran's back injury during that accident, but also stated that he had seen the Veteran having pain in his back following the accident. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran injured his back during the accident in service. Given the documented treatment for the left leg and right knee following the accident, the Board finds that the Veteran also injured his knees during the accident. The remaining question is whether the Veteran's current low back and knee disorders are causally related to those injuries. The Veteran's post service medical records show complaints of low back pain as early as September 1994. However, they also show that he injured his low back at work in September 1996 and December 1997. An October 1997 VA medical record shows complaints of aches and pain in the joints. The Veteran was afforded a VA examination in May 2009. The examiner noted the in-service history of right knee problems in April 1987 and back pain in June 1988. After examining the Veteran, the examiner provided diagnoses of degenerative arthritis of the lumbar spine and right knee, which was confirmed by x-rays. The examiner opined that the Veteran's low back and knee disorders are not related to service as there is a lack of medical follow-up. A September 2009 letter from a private physician reflects the opinion that the Veteran's low back and knee disorders could be related to service. In December 2009, the Veteran underwent surgery for T12-L1 disc protrusion with attendant osteophyte formation and secondary distal spinal cord compression. A September 2010 letter from another private physician reflects the opinion that the Veteran's low back disorder appears to be related to an injury in service. The Veteran was afforded another VA examination in January 2011. The examiner noted the in-service injuries to the knees from the motor vehicle accident and the Veteran's report of injuring the back at that time. The examiner noted the Veteran's complaints of knee and back pain with numbness in the right leg since the injuries. The examiner observed that the Veteran was finally evaluated in 2009 at which time he was found to have a right radiculopathy and a right central lateral herniated disc at T12 to L1. After examining the Veteran, the examiner provided diagnoses of patellofemoral syndrome of the right knee with degenerative change, retropatellar pain syndrome of the left knee with degenerative change, and residuals of injury to the lumbar spine with herniated disc at T12-L1, status postoperative anterior and posterior fusion with titanium rods. The examiner then opined that the Veteran's bilateral knee and low back disorders are related to the motor vehicle accident in service as the Veteran did have radicular symptoms at that time. In a February 2011 administrative note from the Fayetteville VA Medical Center (VAMC), a physician noted the Veteran's history of injuring the back in service in a motor vehicle accident when he was thrown out of a two and a half ton truck he was riding when it turned over on its side. The physician noted the Veteran's post-service back injury in October 2009 at which time a herniated disc at T12 was found. The physician commented that T12 is an unusual place to have a herniated disc but noted that it was consistent with injuries involving flexion mechanisms such as being thrown out of a two and a half ton truck. The physician concluded that it is certainly possible that the Veteran's injury from the motor vehicle accident in service set him up for ultimately developing the herniated disc at T12 which compressed his spinal cord. In a May 2011 report, the examiner who conducted the January 2011 VA examination stated that the Veteran's right knee injury during the in-service motor vehicle accident is enough to induce patellofemoral syndrome and eventual mild degenerative change, which the Veteran currently has. Regarding the low back, the examiner noted the Veteran's report of injuring the low back in the same motor vehicle accident and being treated in service on several occasions for numbness in the right leg, which continued after discharge from service. The examiner also noted the Veteran's report of injuring the back in service while changing tires. The examiner then stated that the Veteran's low back disorder is related to the injuries he sustained in service when he was having radicular symptoms and eventually proven to have a right lower extremity radiculopathy. In an April 2012 report, the above examiner provided yet another opinion. The examiner stated that, after again reviewing the Veteran's claims file, he agreed with the negative opinion of the May 2009 VA examiner. The examiner noted the post-service job injuries in 1994, 1996, and 1997 and the 2007 x-rays of the knees that were negative. The examiner commented that there was a lack of medical follow-up after the in-service injuries and the Veteran seemed to be well for a period of time until he sustained the above post-service injuries. Given the above, the record contains both positive and negative medical opinions as to whether the Veteran's low back and knee disorders are related to his in-service injuries. The May 2009 VA examiner provided a negative opinion based on a lack of medical follow-up. However, the Board notes that continuity of symptomatology and not treatment is the relevant issue. Here, the Board finds credible the Veteran's statements alleging continuity of symptomatology both during and after service. Next, two private physicians provided positive opinions; however, their opinions were speculative. Then, the Veteran's VA treating physician provided a positive opinion. Although the opinion appears to be speculative, the specificity of the rationale involving a herniated disc at T12 and the type of injuries that cause it lend the opinion probative value. Finally, the January 2011 VA examiner provided a positive opinion that he reiterated in May 2011 but then retracted in April 2012. In revising his opinion to a negative one, the examiner noted a lack of follow-up after the in-service injuries. The Board reiterates that continuity of symptomatology is the relevant issue and the Board has found credible the Veteran's statements as to continuity of symptomatology. Thus, the Boards that there is an approximate balance of positive and negative evidence regarding whether the Veteran's current low back and knee disorders are related to his in-service injuries. Resolving reasonable doubt in the Veteran's favor, the Board finds that his low back and bilateral knee disorders are causally related to active service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for low back and bilateral knee disorders is warranted. ORDER Service connection for a low back disorder is granted. Service connection for a bilateral knee disorder is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs