Citation Nr: 1756951 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-09 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability of the lumbar spine. 2. Entitlement service connection for a bilateral knee disability. 3. Entitlement service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1956 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of June 2010 and August 2010 rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2016, the Veteran testified at a Travel Board hearing before a Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this case in July 2016. It has returned to the Board for adjudication. The Board notes that the Veteran has appealed a February 2016 denial of his claim of entitlement to service connection for bilateral lower extremity peripheral vascular disease. The RO has jurisdiction over this matter and appears to be adjudicating it. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's lumbar spine disability is causally related to his active service. 2. Resolving all doubt in the Veteran's favor, the Veteran's bilateral knee disability is causally related to his active service. 3. The preponderance of the evidence indicates that the Veteran does not suffer from a bilateral ankle disability. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a disability of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish entitlement to service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a veteran in developing information and evidence necessary to substantiate their claim. Under 38 U.S.C. § 5103(a), VA must notify a veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence a veteran is expected to provide. VA has provided the Veteran with the requisite information as to the above claimed disabilities. As to the duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. See 38 U.S.C. § 5103A(a), (b) and (c). The RO has obtained the Veteran's service treatment records, VA medical records, and private treatment records. In its prior remand of this case, the Board charged the RO with attempting to obtain additional private treatment records and service treatment records. Requests for records from Womack Army Hospital and Tripler Army Medical Center returned no records. The Veteran did not provide information sufficient to identify treatment at "San Pedro Hospital." Private treatment records have been added to the Veteran's claims file, and the Veteran has stated that he does not have additional information to submit as to private medical providers. The RO provided the Veteran with examinations in July 2010 and June 2017 to assess whether the Veteran suffered from disabilities for which he would be entitled to service connection benefits. The Board finds these reports adequate to decide the Veteran's claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board also finds that the RO has substantially complied with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board concludes that no further assistance to the Veteran in developing the facts pertinent to this claim is required. II. Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection, the following must be shown: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or cause when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). III. Factual Background A June 1956 service treatment record indicates that the Veteran injured his right knee. An April 1957 service treatment record indicates that the Veteran again injured his right knee. The Veteran's service treatment records also note a report of back pain in November 1976. The Veteran, during the period on appeal, has stated that he experienced back, knee, and ankle problems due to parachuting, and was treated by "T-medics," with pain medication. A March 1978 Report of Medical Examination at separation rated the Veteran's lower extremities and spine as normal, and a contemporaneous Report of Medical History noted no reports of back or knee trouble. The report did note pain affecting the Veteran's left ankle. The record also indicates that, in 1986, the Veteran underwent a right side lumbar microdiscectomy at the L5-S1 region of his spine. A May 2001 private treatment record notes the Veteran as suffering from mild osteoarthritis affecting his spine. A September 2002 private treatment record notes that the Veteran suffered from "claudication," or pain and cramping affecting the lower leg, after walking for an extended length of time. January and February 2003 private treatment records contain similar findings. A May 2006 VA treatment record notes that the Veteran suffered from chronic low back pain, with a history of low back surgery. The treatment record also notes that the Veteran's lumbar spine displayed mild disc disease. A June 2008 VA treatment record notes that the Veteran suffered from pain and cramping affecting the lower leg. A July 2009 VA treatment record notes the Veteran as suffering from moderate degenerative disc disease at the lumbosacral junction. VA provided the Veteran with an examination in July 2010 to determine whether he suffered from disabilities affecting his knees and ankles, for which he would be entitled to service connection. A corresponding examination report notes that the Veteran began suffering from bilateral knee pain during service, which the Veteran attributed to his service as a paratrooper. The report indicates that the Veteran estimated that he performed 600 jumps over an eight year period. The Veteran did not report stiffness, swelling, weakness, or instability during the examination, but did report daily intermittent knee pain after walking. The Veteran's peripheral vascular disease, following a 2004 fem-pop bypass and implantation of bilateral femoral artery stents, is also discussed in the report. The examiner opined that this issue was not a disability affecting the Veteran's knees. The examiner, in discussing the Veteran's claimed bilateral ankle disability, noted that the Veteran's VA medical records were silent for reports of ankle pain. The Veteran, during the examination, reported bilateral ankle pain, starting in service, which he again attributed to his service as a paratrooper. The Veteran noted that he pulled his right Achilles tendon during service, which, apparently, healed without recurrent issues. The Veteran also denied ongoing ankle care for the thirty years prior to the examination. The Veteran reported ankle pain during walking, over the bilateral medial-anterior portions of his ankles. The Veteran did not report stiffness, swelling, weakness, or instability, but did report intermittent pain. Imaging of the Veteran's knees and ankles proved negative. The examiner concluded that the Veteran did not suffer from a bilateral knee condition or bilateral ankle condition. A September 2012 private treatment record notes the Veteran as suffering from multilevel degenerative disc disease affecting his lumbar spine. A March 2017 medical opinion letter drafted by the Veteran's private physician attributes the Veteran's claimed disabilities to his years a paratrooper. The medical opinion letter discusses studies attributing knee and ankle injuries to parachute jumps, and discusses the effects of numerous parachute jumps on the back. According to the Veteran's physician, the Veteran's extensive parachuting, and lack of significant post-service joint trauma, indicates that "the joint problems he suffers from today were brought about by his parachuting duties[.]" In June 2017, VA provided the Veteran with examinations to determine whether he suffered from disabilities for which he would be entitled to service connection. An examination of the Veteran's knees revealed that that the Veteran suffers from degenerative changes affecting both knees, which cause crepitus and decreased range of motion. Imaging of the Veteran's left knee revealed a diagnosis of arthritis. Both knees displayed an abnormal range of motion. The Veteran described pain that radiated from his back to his knees. The examiner noted the Veteran's service as a paratrooper, but opined that the Veteran's bilateral knee disability was not related to his service because the Veteran did not display a knee condition "other than that expected of the natural process of aging in a man in his seventies." An examination of the Veteran's ankles revealed that the Veteran does not suffer from a diagnosed condition. The examiner responsible for the examination did not provide a diagnosis for the Veteran's ankles because "there is no pathology to render a diagnosis." The Veteran described pain that radiated down to his ankles. The examiner noted that the Veteran's ankles displayed a normal range of motion, no evidence of pain on passive range of motion testing, and no evidence of pain on non-weight bearing. Examination of the Veteran revealed normal ankles, as did imaging. The examiner opined that the Veteran's lower extremity pain was related to his vascular disease, and that the Veteran did not have a diagnosed ankle condition related to orthopedic or other causes. An examination of the Veteran's lumbar spine revealed that the Veteran suffers from degenerative arthritis of the spine. The examiner noted the "discectomy" performed on the Veteran in or about 1986, and stated that this surgery could be due to an in-service or post-service injury. According to the examiner, imaging and examination of the Veteran's back proved consistent with the normal again process. The examiner also stated that parachute jumps could cause injury, with the possibility of increased injury with increased jumps, but opined that the record contained no evidence to suggest that the Veteran's lumbar spine disability was the result of his service. The June 2017 examination reports did not address the facts and conclusions described in the March 2017 medical opinion letter. IV. Analysis Lumbar spine and Knees The medical evidence of record, including the Veteran's VA treatment records and a June 2017 VA examination reports, indicates that the Veteran suffers from a lumbar spine disability and a bilateral knee disability. The Veteran's March 1978 Report of Medical History at separation does not indicate that the Veteran suffered from these disabilities, nor does his Report of Medical Examination at separation, but the Veteran's service treatment records indicate that he suffered from injuries affecting his right knee and back. Testimony provided by the Veteran during a hearing in May 2016 indicates that the Veteran experienced bilateral knee and low back pain during service as a result of numerous parachute jumps. The June 2017 VA examination reports confirm the Veteran's knee and lumbar spine disabilities, but contain opinions finding that these disabilities were not a result of his service. Given the Veteran's symptoms, the evidence of record, and the March 2017 medical opinion letter, the Board finds that the evidence of record stands in equipoise. Resolving reasonable doubt in the Veteran's favor, service connection is warranted for a bilateral knee disability and for a lumbar spine disability. See 38 C.F.R. §§ 3.102, 3.303; Shedden, 381 F.3d at 1167 (setting forth criteria for direct service connection). Ankles Fundamental to the law of service connection is a causal relationship between a post-service disability and a related disease, injury, or event, incurred during active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The July 2010 VA examination of the Veteran's ankles indicates that the Veteran did not suffer from an ankle disability. The June 2017 VA examination revealed similar findings. The Veteran's VA treatment records do not reveal that he suffers from an ankle disability (other than the vascular disability noted below) and the preponderance of the medical evidence of record shows that the symptoms affecting the Veteran's ankle are related to his non-service-connected vascular disease. In February 2016, the RO denied the Veteran's claims of entitlement to service connection for bilateral peripheral arterial disease of the lower extremities, claimed as stents in both legs. As noted above, the Veteran has appealed his denial of his claims of entitlement to service connection for bilateral peripheral arterial disease of the lower extremities. The evidence indicates that he does not suffer from a diagnosed ankle disability and that the symptoms affecting the ankle area are part of a claim currently being processed by the RO, entitlement to service connection for an ankle disability is not warranted. See 38 C.F.R. §§ 3.102, 3.303; Shedden, 381 F.3d at 1167 (setting forth criteria for direct service connection). ORDER Entitlement to service connection for a disability of the lumbar spine is granted Entitlement to service connection for a bilateral knee disability is granted Entitlement to service connection for a bilateral ankle disability is denied. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs