Citation Nr: 18143114 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-34 166A DATE: October 18, 2018 ORDER Entitlement to service connection for lumbar spondylosis / degenerative disc disease is granted. Entitlement to service connection for a cervical spine condition (claimed as neck condition) is denied. Entitlement to service connection for bilateral knee degenerative joint disease is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s lumbar spondylosis / degenerative disc disease began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding the Veteran’s cervical spine condition (claimed as neck condition) began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The evidence is at least in equipoise that the Veteran’s bilateral knee degenerative joint disease began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for lumbar spondylosis / degenerative disc disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a cervical spine condition (claimed as neck condition) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for bilateral knee degenerative joint disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1963 to May 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated March 2013, which denied service connection for lumbar bilateral spondylosis disc degeneration (claimed as back condition), cervical spondylosis disc degeneration (claimed as neck condition), and bilateral knee degenerative joint disease. The Veteran testified before the undersigned Veterans Law Judge during a June 2018 videoconference hearing. A transcript of that proceeding is associated with the claims file. VA received evidence subsequent to the final consideration of the claim by the RO, but the Veteran waived RO consideration of that evidence in correspondence received in October 2018. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the September 2014 statement of the case, and are not repeated here in full. Neither the Veteran nor his representative raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. Finally, neither the Veteran nor his representative raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran claims his back, neck, and knee conditions on appeal are the result of his time spent in service as a Marine Corps flamethrower operator. See generally July 2012 VA Form 21-4138; June 2018 hearing transcript. The Veteran claims his job required him to carry flamethrower equipment on his back that weighed upwards of 75 pounds, with which he engaged in road marches during training, as well as Vietnam combat operations that included having to jump four to five feet to the ground from hovering helicopters. See id. He further claims, with respect to his neck, that one of the times he landed on the ground after jumping from a helicopter, a part of the flamethrower tank hit him in the neck, and also that he landed on his neck and back when he fell several feet onto a concrete floor while stationed in Hawaii. See June 2018 hearing transcript. He further claims he sought treatment for his back and knees “shortly after” his discharge from service. Id. The Board finds the Veteran’s characterization of his in-service activities relating to his role as a flamethrower operator credible and consistent with the circumstances, conditions, or hardships of such service. See 38 U.S.C. § 1154(b); DD Form 214 (noting award of Combat Action Ribbon); For the reasons set forth below, the Board finds the evidence is at least in equipoise as to whether the Veteran’s lumbar spondylosis / degenerative disc disease and bilateral knee degenerative joint disease began during active service, or are otherwise related to an in-service injury, event, or disease. Affording him the benefit of the doubt, entitlement to service connection for those conditions is granted. The Board finds the weight of the evidence is against finding the Veteran’s cervical spine condition (claimed as neck condition) began during active service, or is otherwise related to an in-service injury, event, or disease, and that entitlement to service connection is not warranted. 1. Lumbar spondylosis / degenerative disc disease In May 2012, the Veteran began treatment with a private chiropractic physician. Based on x-rays taken at that time, the physician diagnosed the Veteran with degenerative disc disease and degenerative joint disease throughout his lumbar spine, indicating the condition had existed for many years. See July 2012 private treatment letter. The physician stated the Veteran’s reported in-service activities as a flamethrower operator, to include marching, running, and jumping from helicopters with equipment, caused repetitive injuries to the Veteran’s lower back and both knees, creating chronic pain. The Board finds the treatment letter is competent, credible evidence of repetitive use and impact injuries sustained by the Veteran during service, and is highly probative of the etiological nature of the Veteran’s lumbar spondylosis / degenerative disc disease. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim). In February 2013, the Veteran underwent a VA examination for his lower back. The examiner noted a diagnosis of “lumbar spondylosis / disc degeneration,” and opined it was “not related to events that occurred in military service” because the Veteran was not seen in military service for lower back problems, but rather was “most likely from aging.” The VA examiner further dismissed the July 2012 private treatment letter as “speculative and short sighted” on grounds it did not consider the Veteran’s “medically accepted risk factors” of morbid obesity and smoking. The Board finds the probative value of the VA examiner’s opinion is diminished by its conclusory and absolute statement that the Veteran’s condition was “not related” to his service without explaining how carrying 75 pounds of equipment over long distances and sustaining repetitive impacts from jumping from helicopters had no medical effect on the Veteran’s lower back, particularly in light of the Veteran’s credible lay statements that he had suffered lower back pain since service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of opinion comes, in part, from fully articulated, sound reasoning). It seems the VA examiner relied on the fact the Veteran was not treated during service for any back condition; however, service connection does not require in-service treatment. Moreover, although the VA examiner dismissed the July 2012 private treatment letter because it did not address the Veteran’s obesity and smoking, the VA examiner admitted those factors are “not causative” of the Veteran’s lower back condition. Accordingly, the Board finds the VA examiner’s criticism of the July 2012 private treatment letter with respect to the Veteran’s lumbar spine condition is insufficient to reduce its probative value. The Board also considered records the Veteran submitted from another private physician, including an April 2017 “Nexus Statement” and July 2014 private treatment records. The “Nexus Statement” is a preprinted form with various check boxes and blank lines for information. It states the Veteran has diagnoses of cervical spondylosis and lumbosacral spondylosis, and is marked “As caused by or a result of injury from military service.” The “rationale” section of the form states “please see enclosed initial evaluation of 7/28/2014.” The Board finds the “Nexus Statement” and corresponding July 2014 initial evaluation records have no probative value on the etiology of the Veteran’s lumbar spondylosis / degenerative disc disease because they contain no analysis or rationale supporting the conclusion the Veteran’s condition was “caused by or a result of injury from military service.” Rather, the July 2014 initial evaluation records merely recite the medical history and subjective symptoms as reported by the Veteran. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). In summary, the Board finds the evidence is at least in equipoise that the Veteran’s lumbar spondylosis / degenerative disc disease began during active service, or is otherwise related to an in-service injury, event, or disease. Giving him the benefit of the doubt, service connection is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Cervical spine condition (claimed as neck condition) In February 2013, the Veteran underwent a VA examination for his neck. The examiner noted a diagnosis of cervical spondylosis / disc degeneration. The Veteran reported he developed non-traumatic neck pain approximately two to three years after separation. The examiner opined it was “not related to events that occurred in military service” because the Veteran was not seen in military service for neck problems, but rather was “most likely from aging.” The Board finds the VA examiner’s opinion to be highly probative as to the etiological nature of the Veteran’s cervical spine condition. As noted above, the Board has found the Veteran to be a credible historian, and thus he credibly reported the onset of that condition as two to three years after separation. The Board considered the April 2017 private “Nexus Statement” and July 2014 private treatment records in connection with his cervical spine condition claim. For the same reasons discussed above regarding the Veteran’s lumbar spondylosis / degenerative disc disease claim, the Board finds they have no probative value on the etiology of the Veteran’s cervical spine condition because they merely recite the medical history and subjective symptoms as reported by the Veteran and contain no analysis or rationale supporting the conclusion the Veteran’s cervical spine condition was “caused by or a result of injury from military service.” See Stefl, supra. The 2013 letter that opined on the relationship between the Veteran’s back and knee conditions and his service duties did not include an opinion about the neck. The Board acknowledges the Veteran’s June 2018 hearing testimony regarding a hard landing out of a helicopter in Vietnam where part of his flamethrower equipment hit him in the neck, as well as an in-service fall in 1965 where he broke his ankle, that also involved his head, neck, and back. However, the Board finds the weight of the evidence shows any neck injuries the Veteran may have sustained in those incidents were self-limiting and resolved on their own accord. The Veteran testified at the hearing that he went to sick bay after the helicopter incident, where he was told his symptoms would go away. Further, the Veteran’s service discharge examination, which noted the ankle fracture, also noted his neck and spine were normal. The Board further finds that, to the extent the Veteran’s diagnosed cervical spondylosis / disc degeneration may be considered arthritis, which is a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), the evidence of record does not indicate manifestations of the disease in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, the Veteran reported to the February 2013 examiner that his symptoms did not start until two to three years after the Veteran’s May 1967 separation from service. For the same reason, the Board further finds that continuity of symptomatology is not established. 38 C.F.R. § 3.303(b). Service connection for a cervical spine condition (claimed as neck condition) is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Bilateral knee degenerative joint disease In May 2012, the Veteran began treatment with a private chiropractic physician. In a July 2012 letter, the physician stated the Veteran’s reported in-service activities as a flamethrower operator, to include marching, running, and jumping from helicopters with equipment, caused repetitive injuries to the Veteran’s knees, creating chronic pain. The Board finds the treatment letter is competent, credible evidence of repetitive use and impact injuries sustained by the Veteran during service, and is highly probative of the etiological nature of the Veteran’s bilateral knee degenerative joint disease. See Harris, supra. In February 2013, the Veteran underwent a VA examination for his knees. The examiner noted a diagnosis of degenerative joint disease and opined it was “not related to events that occurred in military service” because the Veteran was not seen in service for knee problems, but rather was “most likely due to aging and the effects of morbid obesity.” The VA examiner further dismissed the July 2012 private treatment letter as “speculative and short sighted” on grounds it did not consider the Veteran’s obesity. A May 2013 VA treatment record shows the Veteran weighed 305 pounds close to the time of the VA examination. The Board finds the probative value of the VA examiner’s opinion is diminished by its conclusory and absolute statement that the Veteran’s condition was “not related” to his service without explaining how carrying 75 pounds of equipment over long distances and sustaining repetitive impacts from jumping from helicopters had no medical effect on the Veteran’s knees, particularly in light of the Veteran’s credible lay statements that he had suffered knee pain since service. See Nieves-Rodriguez, supra. As with the back condition, it appears the VA examiner relied on the fact the Veteran was not treated during service for any knee complaints, but service connection does not require in-service treatment. Moreover, the VA examiner’s opinion does not explain how obesity is a primary cause of the Veteran’s condition when the Veteran has credibly testified it began manifesting during and immediately after service when he weighed far less than he did at the time of the 2013 VA examination. Accordingly, the Board finds the VA examiner’s criticism of the July 2012 private treatment letter with respect to the Veteran’s bilateral knee condition is insufficient to reduce its probative value. In summary, the Board finds the evidence is at least in equipoise that the Veteran’s bilateral knee degenerative joint disease began during active service, or is otherwise related to an in-service injury, event, or disease. Giving him the benefit of the doubt, service connection is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel