Citation Nr: 1752648 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-31 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine. 2. Entitlement to service connection for arthritis of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1968 and from November 1969 to September 1976. He received multiple decorations, including the Purple Heart, which is indicative of combat as discussed below. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2014, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ); a transcript of the hearing is of record. In September 2017, the Veteran was sent a letter informing him that the VLJ was no longer with the Board and he had the right to another hearing. The Veteran responded later that month that he did not want to appear at another Board hearing and requested that the Board consider his case based on the evidence of record. In December 2015, the Board granted service connection for a low back disorder and reopened the claim for entitlement to service connection for a left knee disorder. It remanded the issues of service connection for DDD of the cervical spine and a degenerative arthritis of the left knee for additional development. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's DDD of the cervical spine was caused by his service-connected disabilities. 2. The evidence is at least evenly balanced as to whether the Veteran's arthritis of the left knee is caused by his service-connected disabilities. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, DDD of the cervical spine is the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. With reasonable doubt resolved in favor of the Veteran, arthritis of the left knee is the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for DDD of the cervical spine and arthritis of the left knee, the only claims on appeal. As this represents a full grant of the benefits sought, a discussion of VA's duties to notify and assist in regards to those claims is unnecessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) If a combat veteran presents satisfactory lay or other evidence of service incurrence or aggravation of a disease or injury, which is consistent with the circumstances or hardships of his service, then an evidentiary presumption of service incurrence arises and the burden shifts to the government to disprove service incurrence or aggravation by clear and convincing evidence. 38 U.S.C.A. § 1154 (b); 38 C.F.R. § 3.304(d) This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."). Service connection may be established on a secondary basis for a disability, which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). I. DDD of the Cervical Spine The Veteran claims that he has a neck disorder that developed at the same time as the Veteran received his service-connected disabilities while serving in Vietnam, or as secondary to his service-connected disabilities. (July 2014 VA 646; June 2015 Board hearing). The Veteran's physical, service-connected disabilities include degenerative changes of the lumbar spine (claimed as lower back condition); residuals of a gunshot wound to the right knee, with knee meniscectomy and total knee replacement; residuals of a gunshot wound to the left buttock; residuals of a gunshot wound to the right forearm; degenerative joint disease of the left hip, status post replacement; and shortening of the left leg. The Board initially notes that the Veteran has a current cervical spine disability. An August 2013 VA examiner diagnosed him with DDD of the cervical spine. As such, the question before the Board is whether such disorder is etiologically due to service or a service-connected disability. The service treatment records are negative as to complaints of, or treatment for, a neck disorder, though there are records of treatment for his service-connected disabilities. The November 1965 enlistment examination documented a finding of scoliosis. In his May 1976 report of medical history, the Veteran denied having recurrent neck pain. In September 1976, he reported no change in his condition since his last separation examination. Following his September 1976 separation from service, neither VA nor private medical records document any complaints of, or treatment for, the neck for years following service. However, both VA and private medical records document complaints of, and treatment for, the neck since at least the early 2000s. (May 2003 VA X-ray documenting moderately severe degenerative disc disease of the cervical spine, April 2004 Kaiser Orthopedic Consultation). However, such records generally do not elaborate on the etiology of such a disorder, other than the August 2009 VA medical record discussed below. In an August 2009 VA medical record, the Veteran's physician reported that the Veteran's neck pain is likely from musculoskeletal sources and back pain "is likely from abnormalities in the patient's gait." The Board notes that the record documents that the Veteran has frequently had an altered gait due to his service-connected disabilities. For example, a July 2009 VA medical record documented that for the service-connected right knee, the Veteran needed a second total knee arthroplasty, due to instability. A July 2009 VA physical therapy consult following that surgery noted that the Veteran needed to address his impairments to work toward normalized gait. Also, the Veteran is service-connected for a shortened left leg, following the replacement of the service-connected left hip. As such, the record indicates that the Veteran has an altered gait and several musculoskeletal issues due to his service-connected disabilities. In August 2013, a VA examiner found that the Veteran's current DDD of the cervical spine is degenerative in nature and multilevel, which is not typically caused by gait disturbance or acute injury. In March 2016 VA examination, the examiner noted that there is no evidence of neck complaints or injuries in-service and that the Veteran's neck disorder is not related to his hip replacement. The above evidence reflects that there are conflicting opinions as to whether the Veteran's DDD of the cervical spine is caused by his service-connected disabilities, and these opinions are of about the same probative weight. The evidence is thus approximately evenly balanced on this question. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for DDD of the cervical spine on a secondary, causation, basis, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Arthritis of the Left Knee The Veteran claims that he has a left knee disorder that developed at the same time as the Veteran received his service-connected disabilities while serving in Vietnam, or as secondary to his service-connected disabilities. (July 2014 VA 646; June 2015 Board hearing). The Veteran's physical, service-connected disabilities include degenerative changes of the lumbar spine (claimed as lower back condition); residuals of a gunshot wound to the right knee, with knee meniscectomy and total knee replacement; residuals of a gunshot wound to the left buttock; residuals of a gunshot wound to the right forearm; degenerative joint disease of the left hip, status post replacement; and shortening of the left leg. The Board initially notes that the Veteran has a current left knee disorder. A March 2016 VA examiner diagnosed him with traumatic arthritis of the left knee and degenerative arthritis of the left knee. As such, the question before the Board is whether the left knee arthritis is etiologically due to service or a service-connected disability. The service treatment records are negative as to complaints of, or treatment for, a left knee disorder, though there are records of treatment for his service-connected disabilities. In his May 1976 report of medical history, the Veteran denied having "trick" or locked knee. In September 1976, he reported no change in his condition since his last separation examination. Following his September 1976 separation from service, neither VA nor private medical records document any complaints of, or treatment for, the left knee for years following service. In a July 2009 physical therapy consult, the clinician noted that the Veteran's knees had problems with decreased transfers and decreased gait. Under a summary of assessment section, the clinician noted that skilled physical therapy was required to gait/ transfer. In a separate July 2009 VA medical record, the Veteran's physician noted that the Veteran's gait is occasionally stiff with the right knee range of motion In an August 2009 VA medical record, the Veteran's physician reported that the Veteran's back pain "is likely from abnormalities in the patient's gait." The physician cited to multiple knee and hip replacements in determining the etiology of the Veteran's neck and back disabilities. In a July 2014 VA 646, the Veteran's representative stated that the Veteran affirmed that at the time he was shot on his right knee during combat, he also hurt his left knee along with other parts of the body. The representative further stated that the Veteran has maintained that his knee has hurt since the time of his injury during combat. The representative also stated that the injury to his left knee, lower back, and neck were not documented because the medical staff treating the Veteran was concentrating on protecting and taking care of the gunshot wounds and that the musculoskeletal injuries to the left knee, lower back, and neck were not considered. The Board notes that the record documents that the Veteran has frequently had an altered gait due to his service-connected disabilities. For example, a July 2009 VA medical record documented that for the service-connected right knee, the Veteran needed a second total knee arthroplasty, due to instability. A July 2009 VA physical therapy consult following that surgery noted that the Veteran needed to address his impairments to work toward normalized gait. Also, the Veteran is service-connected for a shortened left leg, following the replacement of the service-connected left hip. As such, the record indicates that the Veteran has an altered gait due to his service-connected disabilities. Given the fact that the Veteran has an altered gait caused by his longstanding combat injury residuals, and the attribution of multiple orthopedic disabilities to this altered gait, the evidence is at least evenly balanced as to whether the Veteran's arthritis of the left knee is caused by his Veteran's service-connected disabilities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left knee arthritis on a secondary, causation, basis is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for DDD of the cervical spine is granted. Entitlement to service connection for arthritis of the left knee is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs