Citation Nr: 1329670 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-12 597 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a claimed lumbar spine disorder. 2. Entitlement to service connection for a claimed cervical spine disorder. 3. Entitlement to service connection for a claimed right knee disorder. 4. Entitlement to service connection for a claimed left knee disorder. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to May 1989 and in the Reserve from May 1989 to May 2002, including during periods of active duty from March 1996 to July 1996 and from April 1999 to August 1999 and periods of active duty for training (ACDUTRA) in February and March 1990, May 1991, August 1992, March and April 1993, January 1994, May and June 1995, January 1996, June and July 1997, February 1998, August and September 1999, February and March 2000, February and March 2001, and August and September 2001. These claims initially came before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the RO. In April 2010, the Board reopened the Veteran's previously denied claims of service connection for bilateral knee and lumbar spine disorders. The reopened claims, along with the issue of service connection for a cervical spine condition were remanded to the RO for additional action. In September 2012, the Board again remanded the Veteran's claim for additional development of the record. The case is once again before the Board. FINDINGS OF FACT 1. The Veteran is shown to have degenerative joint and disc disease of the lumbar and cervical portions of the spine that as likely as had their clinical onset during her service. 2. The Veteran is show to have patellofemoral pain syndrome of each knee that as likely as had its clinical onset during her service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, her disability manifested by degenerative joint and disc disease of the lumbar spine is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. By extending the benefit of the doubt to the Veteran, her disability manifested by degenerative joint and disc disease of the cervical spine is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. By extending the benefit of the doubt to the Veteran, her disability manifested by patellofemoral pain syndrome of the right knee is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. By extending the benefit of the doubt to the Veteran, her disability manifested by patellofemoral pain syndrome of the left knee is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no discussion of how VA complied with its duty to notify and assist the Veteran is necessary at this time. The Veteran contends that she has lumbar, cervical and bilateral knee disabilities as a result of injuries sustained while on active duty. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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 or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). I. Lumbar and cervical spine disorder The Veteran's service treatment records serve to document numerous complaints of low back and neck pain. For example, these records show treatment for back pain and muscle spasm in January and December 1981, March 1982, August 1984, September, October and December 1985 and in June 1986. The Veteran also complained of back and neck pain following motor vehicle accidents in 1986 and 1999. Currently, the Veteran has been diagnosed with degenerative joint and disc disease of the lumbar and cervical segments of the spine. See, e.g., the June 2013 VA examination report. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed spine disabilities and her in-service disease or injury. In this capacity, the Veteran was afforded a VA fee-basis examination in May 2008. Following a clinical examination, the examiner noted that the Veteran had had chronic neck pain, but stated that it was unclear whether any specific injury led to her cervical spine disability. The examiner did not offer an opinion as to the etiology of the diagnosed low back disability. The Veteran was afforded an additional VA examination in September 2010. In reviewing the Veteran's medical history, the examiner noted that the Veteran's lumbar spine disability initially manifested as "wear and tear from military activities of lifting things" while on active duty. It was noted that her disability had become progressive worse since its initial manifestations. In a March 2011 VA medical opinion, a VA examiner stated that it was less likely than not (less than a 50% probability) that the Veteran's lumbar and cervical spine disabilities were related to her active duty service. Specifically, the examiner noted that, while the Veteran was treated for neck and back pain following a 1986 motor vehicle accident, a physical examination conducted in February 1989 revealed that her neck was within normal limits. The examiner did not, however, comment on the Veteran's complaints of cervical and lumbar pain following an in- service May 1999 motor vehicle accident. As a result, the examiner's opinion appears to be based on an incomplete understanding of the Veteran's relevant medical history. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). The Veteran was afforded an additional VA examination in June 2013. Following a clinical examination and a review of the claims file, the examiner diagnosed the Veteran with degenerative disc and joint disease of the cervical and lumbar spine. The examiner provided a 1986 "date of diagnosis" for her cervical spine disability and a 1981 "date of diagnosis" for the lumbar spine disability. Notwithstanding the dates of onset provided for the Veteran's disabilities, the examiner opined that the Veteran's current disabilities were not related to her active duty service. Specifically, with regard to the Veteran's cervical spine claim, the examiner noted that the service treatment records documented complaints of neck pain following a 1986 motor vehicle accident. However, since the Veteran's treatment records indicated that this was a "discrete event that improved" the examiner opined that the Veteran's cervical spine disability was not related to her active duty service. Similar to the March 2011 opinion, the June 2013 VA examiner did not comment on the Veteran's complaints of neck pain following her in-service 1999 motor vehicle accident. See Reonal, supra. With respect to her diagnosed lumbar spine disability, the June 2013 VA examiner observed that the service treatment records documented multiple complaints of back pain, but noted that these were "recorded as soft tissue in origin." It was noted that in-service examinations revealed a lack of objective findings to suggest "serious lumbar pathology," and the examiner therefore concluded that the Veteran's current spine disability was not related to her active duty service. The examiner did not, however, comment on the impact, if any, of the soft tissue injuries on the Veteran's current disability. In this capacity, the Board notes that its September 2012 remand specifically noted that the record included a February 1993 letter submitted by a private physician which stated that the Veteran's soft tissue damage to her lumbar spine had predisposed her to further injuries. Given the vague and incomplete nature of the VA examiner's opinion, the Board affords it limited probative weight. See generally Obert v. Brown, 5 Vet.App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim.) With regard to the Veteran's lay statements, the Court has held that lay testimony may be competent to establish a diagnosis by describing symptoms that support a later diagnosis by a medical professional. See Jandreau, supra. In this case, the Veteran has provided competent lay testimony of having constant back and neck pain that began while on active duty and had continued to the present. Indeed, the Veteran's service treatment records and post- service treatment records document her ongoing complaints of neck and back pain. This case meets the three-element test as set forth in 38 C.F.R. § 3.303(a) - (1) the existence of a present disability (the diagnosis of degenerative joint and disc disease of the cervical and lumbar spine); (2) in-service incurrence of a disease (the documented complaints of neck and back pain); and (3) a causal relationship between the present disability and the disease or injury incurred during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus requirement here was established by way of credible lay evidence and competent, circumstantial medical evidence. Both the lay and medical evidence of record is probative in the instant case. In addition, the Board emphasizes that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Moreover, 38 C.F.R. § 3.303(a) provides that determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Accordingly, when viewed as a whole, the Board finds that the evidence to be in relative equipoise in showing the presence of symptomatology during service that as likely as not reflected the onset of the claimed cervical and lumbar spine disabilities during service. In resolving all reasonable doubt in the Veteran's favor, service connection for degenerative joint and disc disease of the cervical and lumbar portions of the spine is warranted. IV. Bilateral knee disabilities The Veteran contends that she incurred bilateral knee disabilities from running and due to the motor vehicle accidents in 1996 and 1999 while on active duty. A review of the Veteran's service treatment records showed that she complained of weakness in both of her knees in August 1988. An examination revealed effusion and weakness in the knee joints. Patellofemoral arthralgia status-post running was diagnosed. During a June 1997 in-service examination, the Veteran reported having a trick or locked knee. In addressing the Veteran's complaints, a physician noted that the Veteran experienced "recurrent bilateral knee pain" and diagnosed her with arthritis. Following her separation from service, the Veteran was diagnosed with patellofemoral pain syndrome. See, e.g., the June 2013 VA examination report. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed knee disabilities and her in-service disease or injury. In this capacity, the Board notes that the record contains a December 1993 VA examination report stating that the Veteran "ha[d] problems with both knees which crack and lock since 1987." The Veteran was afforded a VA fee-basis examination in May 2008. While the Veteran complained of pain and weakness in her knees, the examiner noted that there was "no pathology to render a diagnosis." The Board notes, however, that the examiner did not comment on a VA treatment record from April 2008 that showed that the Veteran had diminished range of motion in both knees, had an abnormal gait, and diagnosed her with patellofemoral disease. During the September 2010 VA examination, the Veteran was diagnosed with patellofemoral pain syndrome. While the examiner noted that the Veteran's knee problems began in 1986, he did not provide an opinion on the etiology of her current disability. In a March 2011 VA medical opinion, a VA examiner stated that it was less likely than not (less than a 50% probability) that the Veteran's bilateral knee complaints were caused by or a result of an injury or other event of her active duty service. Specifically, the VA examiner noted that, while the Veteran received treatment for knee pain while on active duty service, she was not found to have a "structural knee problem." Instead, the examiner indicated that the Veteran experienced "an isolated, self-limiting episode of knee pain with no clear precipitating cause, no definitive diagnosis, and no apparent follow up for additional care." The Board notes, however, that the VA examiner did not comment on the Veteran's in-service complaints of ongoing knee pain, or her post-service statements that such pain have continued to the present. See Reonal, supra. The Veteran was afforded a VA examination in June 2013 when, following a review of the claims folder and a clinical examination, the VA examiner diagnosed her with patellofemoral pain syndrome. In describing the history of the Veteran's knee disabilities, the examiner noted that the Veteran complained of having knee pain on several occasions while on active duty. It was noted that motor vehicle accidents from 1996 and 1999 resulted in knee contusions with "pain that ha[d] progressed and [was] of [the] same quality and location as that she [was] currently experiencing." In opining on the etiology of the Veteran's bilateral knee disabilities, however, the VA examiner stated that the Veteran's service treatment records do not document any "structural" knee problems and a February 1989 separation examination reported that the Veteran's knees were within normal limits. Similar to the March 2011 VA opinion, the VA examiner did not comment on the Veteran's documented ongoing complaints of knee pain. With regard to the Veteran's lay statements, the Court has held that lay testimony may be competent to establish a diagnosis by describing symptoms that support a later diagnosis by a medical professional. See Jandreau, supra. In this case, the Veteran has provided credible lay testimony of knee pain that began during her active duty service and had continued to the present. These statements are well documented in her service treatment records, post- service treatment records and lay statements. This case meets the three-element test as set forth in 38 C.F.R. § 3.303(a) - (1) the existence of a present disability (the diagnosis of sleep apnea); (2) in-service incurrence of a disease (the Veteran's credible testimony of sleep problems during service); and (3) a causal relationship between the present disability and the disease or injury incurred during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus requirement here was established by way of credible lay evidence and competent medical evidence. Both the lay and medical evidence of record is probative in the instant case. Accordingly, when viewed as a whole, the Board finds that the evidence to be in relative equipoise in showing the presence of symptomatology during service that as likely as not reflected the onset of the bilateral knee disabilities during service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for degenerative joint and disc disease of the cervical spine is granted. Service connection for degenerative joint and disc disease of the lumbar spine is granted. Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs