Citation Nr: 18146882 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 14-29 189 DATE: November 1, 2018 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran died in June 2017. 2. The Veteran had a back disability, diagnosed as degenerative arthritis, that is presumed to be etiologically related to his active service. 3. There is no objective medical evidence that the Veteran had a left knee disability and limited range of motion is not a chronic disability for which VA disability benefits may be awarded. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 105(a), 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from March 1967 to March 1971. He died in June 2017. The appellant is his surviving spouse, who has been properly substituted in the appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In connection with this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in June 2015 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. In June 2018, the Board advised the appellant that the VLJ who presided over the hearing was no longer employed by the Board and offered the appellant the opportunity for a hearing before a new VLJ. To date, the Board has not received a response from the appellant. Accordingly, the appeal has been reassigned to the undersigned VLJ for adjudication based on the evidence of record. Service Connection 1. Back Disability Prior to his death, the Veteran asserted that his back disability was related to his active service. Specifically, he testified that he missed a stair in a small missile tunnel, fell, and hit both of his knees and back while carrying heavy test gear. He mentioned that after he finished his shift, he was “quite” sore. After separating from service, he asserted that he continued to have back problems, took aspirin for the pain, and sought chiropractic treatment in the late 1970s. Despite a few inconsistencies, the appellant recalled that the Veteran told her that his back pain began after he slipped or fell in a missile silo during service. She stated that the Veteran had back problems since 1970 and saw a chiropractor several times in the early 1980s. The Board notes that the Veteran is competent to report that he first experienced back pain after an in-service fall and that the symptoms continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. Service treatment records (STRs) are silent for treatment for, or a diagnosis of a back disability. However, a February 1971 separation examination report noted that the Veteran experienced occasional backaches during service. A review of post-service treatment records shows that the Veteran complained of back pain in December 2008. He was later diagnosed with degenerative changes in his back. The Veteran was afforded a VA examination in April 2013. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by service. He stated that the Veteran’s separation examination was normal for spine, neurologic, upper and lower extremities and the Veteran denied all other significant medical or surgical history. Further, he stated that the Veteran’s medical history did not support a significant type of back injury, fracture, or ongoing back disability. The examiner stated that sixty percent of degenerative joint disease or arthritis was due inherited traits and that the condition was commonly seen in individuals over the age of fifty. In a September 2015 medical statement, a private orthopedic surgeon opined that there was more likely than not a causal nexus between the Veteran’s back disability and slip and fall during service. He noted that the Veteran had no history of a back disability prior to service and that there was no medical evidence to contradict the Veteran’s lay statements. The Veteran was provided an additional VA examination in May 2017. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by service. She stated that there was no evidence the Veteran’s back disability was related to service after more than forty years and no evidence of chronicity of a back disability during service. She noted that the Veteran reported seeing a chiropractor one time in the 1980s, twenty years post-service. The examiner agreed that the Veteran’s back disability was more likely due to aging. In a June 2017 addendum VA medical opinion, the examiner reiterated that the Veteran saw a chiropractor one time and at least nine years after military discharge. She opined that it was less likely than not that the Veteran’s back disability was due to an undocumented in-service event and more likely than not due to aging. The Board finds the VA medical opinions of record to be inadequate for adjudication purposes. In this regard, the VA examiners do not appear to have taken into account the Veteran’s report of continual back problems since service and self-medication following service. Additionally, the examiners did not address the potential mechanism of injury of falling on the Veteran’s back with heavy weight. Therefore, the Board finds the opinions are of limited probative value and cannot serve as the basis of a denial of entitlement to service connection. The Board notes that for certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran had competently identified that his back pain began in service and had continued since that time, and those statements have been found credible by the Board. While the Veteran was not competent to establish a diagnosis of arthritis, as that required medical imaging and a medical opinion, his statements of continuity of back pain was sufficient to establish a link between his current diagnosis and his in-service complaints of backaches. Arthritis is a chronic disease, and the Veteran had competently and credibly attested to the continuity of symptomatology of back pain, which he was treated for following service and later diagnosed as degenerative arthritis. Moreover, while there are VA medical opinions of record indicating that the Veteran’s back disability was not related to his active service, the opinions are not adequate. Further, a private orthopedic surgeon determined that there was a plausible nexus to service. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Left Knee Disability Prior to his death, the Veteran asserted that his left knee disability was related to his active service. Specifically, as detailed above, the Veteran fell and hit both of his knees. He testified that his left knee took the brunt of the force because it hit the actual step. Additionally, the appellant asserted that the Veteran’s bilateral knee disability was secondarily related to his back disability. STRs are silent for complaints of, treatment for, or a diagnosis of a left knee disability. A review of post-service treatment records shows that the Veteran complained of bilateral knee pain in October 2009. However, there was no confirmed diagnosis of a left knee disability. In May 2017, the Veteran was provided a VA examination. The examiner stated that a left knee disability had not been diagnosed or treated. However, she found that the Veteran had limited range of motion in his left knee. The examiner explained that she did not know why the Veteran had limited motion given the Veteran’s normal lower extremity strength, sensation, and reflexes. The Board acknowledges that the May 2017 VA examination demonstrated that the Veteran had limited motion in his left knee; however, that finding has not been attributed to any in-service or post-service clinical diagnosis. Limited range of motion, in and of itself, is not a recognized disability for VA compensation purposes. The term “disability,” used for VA purposes, refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). There is no evidence of record that suggests that the Veteran’s limited range of motion in his left knee caused any impairment of earning capacity. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Accordingly, the appellant cannot establish service connection for a left knee disability. REASONS FOR REMAND Entitlement to service connection for a right knee disability Prior to his death, the Veteran contended that his right knee disability was related to his active service. Specifically, as detailed above, the Veteran fell and hit both of his knees. He testified that his left knee took the brunt of the force because it hit the actual step. After separating from service, the Veteran and the appellant asserted that he continued to have knee problems. Additionally, the appellant asserted that the Veteran’s bilateral knee disability was secondarily related to his back disability. STRs are silent for complaints of, treatment for, or a diagnosis of a right knee disability. A review of post-service treatment records revealed that the Veteran complained of bilateral knee pain in October 2009. He was later diagnosed with degenerative changes in his right knee. Pursuant to a March 2017 Board remand, the Veteran was provided a VA examination in May 2017. The examiner opined that the Veteran’s right knee disability was less likely than not incurred in or caused by service. The examiner stated that there was no evidence of a knee disability related to the Veteran’s service. She noted that the Veteran’s right knee disability occurred fifty years after separation. She concluded that the Veteran’s right knee disability was most likely due to aging but stated that the Veteran’s childhood fracture to his right leg may have also increased the Veteran’s development of joint problems. The Board finds that the development conducted does not adequately comply with the directives of March 2017 remand directing the examiner to provide an opinion on a secondary basis. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, a new VA medical opinion should be obtained to determine the nature and etiology of any currently present right knee disability. The matter is REMANDED for the following action: 1. Return the claims file to the VA Medical Center for an addendum opinion. The claims file must be made available to, and reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any right knee disability was caused or chronically worsened by the Veteran’s service-connected back disability, to include altered gait and/or body mechanics resulting from such. The rationale for all opinions expressed must be provided. 2. Confirm that the VA medical opinion provided comports with this remand and undertake any other development determined to be warranted. 3. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel