Citation Nr: 18152921 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-44 381 DATE: November 27, 2018 ORDER Entitlement to service connection for a lower back disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The Veteran’s was diagnosed with degenerative disc disease (DDD) of the lumbar spine by a September 2009 MRI scan, during the first post-service month; and, the incurrence of DDD of the lumbar spine cannot be satisfactorily disassociated from active service. CONSLUSIONS OF LAW The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2004 through September 2009. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2010 rating decision. The regional office (RO) denied the Veteran’s claim because he did not attend the scheduled examination. The Veteran subsequently indicated that he was willing to report for the examination, which was rescheduled for May 2012. In a July 2012 rating decision, the RO confirmed the prior denials. 1. Entitlement to service connection for a lower back disability. The Veteran asserts that his current lower back disability, specifically degenerative disc disease, was incurred while the Veteran was on active duty service. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection requires competent evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For certain chronic diseases listed in 38 C.F.R. § 3.309 (a), there is a presumption of service connection although not otherwise established as incurred in service if manifested to a compensable degree within the first post-service year. Arthritis is one such disease. While the Veteran’s degenerative disc disease is the degeneration of the discs between the joint spaces of the spine, as opposed to degeneration of the actual joint (arthritis), the Board finds that DDD of the lumbar spine is analogous to degenerative joint disease of the spine, given its chronic and degenerative nature. The Veteran’s service treatment records demonstrate multiple reports of back pain in-service. Additionally, the Veteran complained of back pain during his separation examination in July 2009. The Veteran was discharged from service in September 2009, and that same month, the Veteran was afforded a MRI of his spine at a VA facility. The MRI scan shows degenerative disc disease of the lumbar spine. The Veteran was afforded VA examinations in December 2010 and May 2012. In the December 2010 examination, the examiner did not consider the MRI scan or its interpretation in September 2010, but instead predominately looked to the Veteran’s service treatment records. In the May 2012 examination, the examiner noted that the Veteran had a current disability but concluded that the disability was too serious to have been incurred in service when there was no indication of any in-service back trauma. However, the examiner did not offer an opinion as to the etiology of the Veteran’s back disability, especially in light of the diagnosis directly after service and the Veteran’s continued pain since service. As noted above, the Veteran’s diagnosed degenerative disc disease is considered to be “chronic” for purposes of 38 C.F.R. 3.303(b). The Veteran’s diagnosis of degenerative disc disease was made during the same month that the Veteran was discharged from service. Given the degenerative nature of the disability, the Board can reasonably infer that the DDD of the lumbar spine had its onset at some point during the preceding 5 years of active service. Given the objective MRI evidence of a diagnosis of DDD of the lumbar spine within the first post-service month, coupled with the Veteran’s reports of back pain in service, and during his separation examination, the Board finds that the Veteran’s DDD of the lumbar spine cannot be satisfactorily disassociated from his period of active duty service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2017). Accordingly, resolving reasonable doubt in the Veteran’s favor, service connected for a lower back disability, specifically degenerative disc disease of the lumbar spine, is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran was diagnosed with a mild bilateral knee strain in a December 2010 VA medical examination. The examiner noted that the Veteran suffered from a mild MCL sprain, but the examiner offered no opinion as to the etiology of the Veteran’s disability. In May 2012, the Veteran was afforded a VA examination. The examiner acknowledged the Veteran’s symptoms of occasional pain in his right knee, however, the examiner found no objective evidence of any painful motion. Accordingly, the examiner found no currently diagnosed right knee disability. The examiner in 2012 gave no etiology for the Veteran’s knee pain and did not address the findings from the 2010 examination regarding a knee strain and/or MCL strain. As the Veteran’s reports of knee pain are competent and credible, the Board finds that a new examination is warranted to determine the nature and etiology of the Veteran’s claimed right knee disability. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran’s service treatment records note that the Veteran sought treatment for left knee pain during service. The Veteran’s knee pain was also noted in his July 2009 separation examination. During a December 2010 VA examination, the Veteran reported increased pain with cold as well as activity and mentioned that he notices knee pain when climbing stairs. Further, the Veteran has continued to report knee pain since leaving service. In May 2012, the Veteran was afforded another VA examination. The examiner noted that the Veteran had a currently diagnosed left knee disability, patellofemoral syndrome, but concluded it was not connected to his service because there was no continuity of treatment from service to present. A lack of continuity of treatment does not mean that there was no continuity of symptoms, including but not limited to, pain. Likewise, a lack of treatment does not necessarily equate to a lack of disability. The examiner did not opine as to the etiology of the Veteran’s patellofemoral syndrome or account for the Veteran’s competent and credible reports of pain. As such, the Board finds that a new examination is warranted to determine the nature and etiology of the Veteran’s claimed left knee disability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. The Veteran’s recent move to Wisconsin should be kept in mind when attempting to obtain both private and VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right and/or left knee disabilities. All indicated testing should be accomplished, to the extent possible. For all disabilities diagnosed for the Veteran’s right or left knee, or, if there is no current diagnosis, but there is evidence of pain, with or without limitation of motion or function of the knee(s), the examiner must opine as to whether it is at least as likely as not that the impairment is related to an in-service injury, event, or disease. Further, if the examiner is unable to find a diagnosis, the examiner should opine as to what is cause the Veteran’s pain. All opinions must be accompanied by a complete rationale and the examiner should consider the Veteran's self-reported history with regard to onset and observable symptoms. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk