Citation Nr: 18146848 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 06-02 871 DATE: November 1, 2018 ORDER Entitlement to service connection for a bilateral knee disorder, to include osteoarthritis, is granted. Entitlement to service connection for a neck disorder, to include cervical strain, is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s bilateral knee disorder, to include osteoarthritis, is attributable to service. 2. The preponderance of the evidence is against finding the Veteran’s neck disorder, to include cervical strain, was incurred in or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder, to include osteoarthritis, are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for a neck disorder, to include cervical strain, are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to November 1992. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2005 rating decision issued by the Department of Veterans Affairs (VA). See January 2006 Notice of Disagreement (NOD), April 2006 Statement of the Case (SOC), May 2006 Substantive Appeal (VA Form 9). The Veteran testified before a Decision Review Officer (DRO) in an April 2006 hearing. A transcript of the hearing is associated with the claims file. The Veteran also testified before a Veterans Law Judge (VLJ) in a June 2009 hearing, and a transcript of that hearing is associated with the claims file. In December 2009, the Board remanded the claims to obtain any outstanding relevant evidence and afford the Veteran an orthopedic VA examination. After development was completed, the Board denied claims in April 2012. However, the Veteran was offered an opportunity for a new hearing pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013) and, in June 2014, the Board vacated the April 2012 decision. The Veteran testified before another VLJ in a January 2016 hearing. During that hearing, it was explained to the Veteran that the Board would issue a panel decision because two separate VLJs conducted hearings on the same issues. The Veteran was offered, but waived, the option for a third hearing with a VLJ participating in the panel decision and, thus, the Board proceeded without a third hearing. A transcript of the January 2016 hearing is associated with the claims file. In June 2016, the Board issued a panel decision denying the Veteran’s claims of service connection for a right thigh contusion, a left foot disorder, a right wrist disorder, a throat disorder that was also claimed as reflux, and for low back strain. The Board remanded the claims of service connection for right ear hearing loss, tinnitus, and muscle stiffness of joints and back, for further development, which included obtaining audiometric and orthopedic VA examinations. After development was completed, the Board issued an August 2017 panel decision denying the claims of service connection for right ear hearing loss, tinnitus, and for a disability manifested by joint stiffness of the ankles, hips, and elbows, to include as manifestation of an undiagnosed illness or chronic multisymptom illness due to Gulf War hazards. However, the Board recharacterized the Veteran’s claim of joint stiffness based on the August 2016 VA examiner’s findings and remanded discrete claims of service connection for a bilateral knee disorder, to include osteoarthritis; and a neck disorder, to include cervical strain. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 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 was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a bilateral knee disorder, to include osteoarthritis. The Veteran asserts that he noticed joint stiffness during service while playing football in Germany and performing his duties as a field artillery crewmember, which required lifting and loading heavy artillery rounds. See January 2016 hearing testimony. The Board does not dispute that the Veteran has a current bilateral knee disorder, to include osteoarthritis, or the Veteran’s asserted in service injuries. The August 2016 VA examination report indicates the Veteran has a current diagnosis for bilateral knee joint osteoarthritis. A September 1992 service treatment record show the Veteran was seen for extreme pain while sitting, using stairs, standing for long periods, and walking due to colliding with another player while playing football. The Veteran’s lay statements about his field artillery crewmember duties are consistent with his occupational specialty as a cannon crewmember and his service during the Gulf War. See DD Form 214. The question left for the Board is whether there is medical link or nexus between the Veteran’s current bilateral knee disorder and service. In resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current bilateral knee disorder, to include osteoarthritis, is related to his in service injuries. As discussed above, the Veteran’s service treatment records and occupational specialty are consistent with the Veteran’s testimony about experiencing joint stiffness in service. See September 1992 service treatment record; DD Form 214. In October 2017, a VA examiner provided an addendum opinion as to whether it is at least as likely as not that playing football and loading heavy artillery during service caused physical trauma that resulted in or is related to a bilateral knee disorder, including osteoarthritis. The VA examiner opined the Veteran’s bilateral knee disorder was less likely than not incurred in or caused by the his claimed in service event. However, the VA examiner’s rationale indicates that playing sports or certain jobs can contribute to the increased risk of developing osteoarthritis. See October 2017 VA examination. Moreover, the VA examiner then opined that these activities were not the “sole cause” of his current knee osteoarthritis. Id. The Board notes that the Veteran’s service does not need to be the sole cause of his current knee osteoarthritis, but just a cause of it. In resolving all reasonable doubt in the Veteran’s favor, the Board finds the October 2017 VA examiner’s opinion supports a medical nexus between his current bilateral knee disorder and service. The Board acknowledges that there is a prior August 2016 opinion from the same VA examiner, which indicates it is less likely than not that the Veteran’s bilateral knee degenerative joint disease is related to service. However, as discussed in the August 2017 Board decision, the August 2016 VA examiner’s opinion did not address whether playing football and lifting heavy artillery rounds could cause the Veteran’s current knee disorder. Thus, this prior opinion is not probative as to whether the Veteran’s current bilateral knee disorder is caused by his service. According, the Board finds that service connection for a bilateral knee disorder, to include osteoarthritis, is warranted. 2. Entitlement to service connection for a neck disorder, to include cervical strain. The Veteran asserts to having muscle stiffness in the joints, including in his neck. See January 2016 hearing testimony. The Veteran related to the August 2016 VA examiner that he has stiffness in the neck and needs to change pillows on a regular basis. The Board does not dispute that the Veteran has a current neck disorder, or that the asserted in service injuries occurred. The August 2016 VA examination indicates the Veteran has a current diagnosis for cervical strain. As discussed above, the Veteran’s lay statements about experiencing joint stiffness while playing football and performing his duties as a field artillery crewman are consistent with the evidence in the claims file. See September 1992 service treatment record; DD Form 214. The question left for the Board is whether there is a medical link or nexus between the Veteran’s current neck disorder and service. Here, the Board finds the preponderance of the evidence is against finding the Veteran’s neck disorder was incurred in or otherwise related to service. While the Board finds the Veteran’s lay statements credible as to his current neck disorder symptoms, the evidence does not support the same symptoms during service. The Veteran’s service treatment records disclose no specific complaints about his neck. The Veteran was seen for various conditions such as fever or back and leg muscle strain that affected his ambulation, but he made no complaints about his neck. See October 1988 to September 1992 Service treatment records. The Veteran also reported being in good health at separation in his September 1992 Report of Medical History. In addition, the Veteran related to the July 2016 VA examiner to having no specific neck injury, but to wear and tear over time. The overall lay evidence does not support symptoms of a neck disorder incurred in or related to service. As for the medical evidence, the Board gives probative weight to the October 2017 VA examiner’s opinion. In August 2016, the VA examiner opined it is less likely than not that the Veteran’s cervical strain is related to service. In October 2017, the VA examiner considered the Veteran’s lay statement about joint pain while playing football and lifting and loading heavy artillery. See October 2017 VA examination. The VA examiner still opined that the Veteran’s current neck strain is less likely than not that incurred in or caused by the claimed in service injury, event, or illness. Id. The VA examiner provided rationale that the Veteran related to having no specific cervical spine injury while in service, and that it would be mere speculation for the VA examiner, or any examiner, to state that the Veteran’s current neck strain resulted from playing football and lifting and loading heavy artillery during service. The VA examiner indicates that all available records were reviewed, and the early Central Texas Veterans Health Care System (CTVHCS) Computerized Patient Records System (CPRS) do not show any chronicity regarding a cervical condition. The VA examiner is a medical professional who is qualified to give an opinion on medical nexus. The Board notes that the VA examiner’s opinions are also the only opinion on whether there is a medical nexus between the Veteran’s current neck disorder and service. The Board also notes that the Veteran has variously asserted to having general joint pain, but an October 2010 VA treatment record indicates the cervical x-rays are normal. Thus, the evidence does not support a current cervical degenerative joint disease. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on next page) Accordingly, the Veteran’s claim of service connection for a neck disorder, to include cervical strain, is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel