Citation Nr: 18156504 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 14-29 867 DATE: December 11, 2018 ORDER New and material evidence having been received, the previously denied claim of service connection for a low back condition is reopened. Service connection for lumbar strain with degenerative changes is granted. Service connection for a right knee condition is denied.   FINDINGS OF FACT 1. The Veteran’s low back condition is related to service. 2. The Veteran’s right knee condition is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar strain with degenerative changes are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1969. This case is on appeal from an October 2013 rating decision. The Board’s discussion below is limited to the relevant evidence required to support its finding of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d), the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, if said evidence is consistent with the circumstances, conditions, or hardships of the Veteran’s service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back condition. The RO initially denied a claim of service connection for a low back condition in a March 2005 rating decision. On that occasion, the RO determined that the evidence failed to establish a nexus between the Veteran’s low back condition and his military service. Notification of the decision was sent by letter later in March 2005 to the Veteran’s then-current mailing address. This decision became final, as the Veteran did not appeal the denial, and no new and material evidence was received, within the appeal period. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In January 2013, the Veteran submitted a claim to reopen his previously denied claim. The Veteran submitted private medical treatment records from his orthopedic surgeon and chiropractor covering treatment periods from 2004 to 2010 and providing nexus theories and medical opinions as to the etiology and nature of the Veteran’s current low back condition. The Veteran also submitted lay statements in support of his claim. The Board finds this evidence to be new and material, as it relates to unestablished facts, and raises a reasonable possibility of substantiating the Veteran’s claim. See 38 U.S.C. § 5108; 38 C.F.R. 3.156(a). Thus, reopening of the Veteran’s claim is warranted. 2. Service connection for a low back condition. The Veteran seeks service connection for his current low back condition, which he contends originated during combat while serving in Vietnam and continues to the present. In support of his claim, the Veteran states in several lay statements of record that his low back condition originated directly after incoming rockets and mortars blasted close to him, lifting him in the air and throwing him against a boulder rock, landing on his back. Initially, the Board notes that the Veteran has a current diagnosis of chronic lumbar strain/sprain, degenerative spinal disease and possible spinal stenosis as shown in his private medical records from his orthopedic surgeon, and as per a May 2013 VA examination. As such, the current disability element of the claim has been met. In his lay statements, the Veteran asserts he served in Vietnam, where he was an infantryman. Additionally, the Veteran stated that he injured his back when, during hostile fire in May 1968, he was running to help seriously wounded comrades to get first aid and suddenly, a mortar round blasted close enough to lift him in the air, throwing him against a boulder rock. After the blast, the Veteran laid on the ground with extreme pain. The Veteran’s statement is confirmed by the Army General Orders No. 6780, which provided, in part, that “for heroism on May 18th, 1968 in the Republic of Vietnam, [the Veteran] distinguished himself by valorous actions while serving with Company A, 4th Battalion, 31st Inf. On that day, Company A became engaged with a well-armed and entrenched enemy force. The Company was subjected to intense hostile small arms, automatic weapons, and recoilless rifle fire, plus grenades and mortars attacks. [the Veteran] observed two men of his platoon as they fell wounded from recoilless rifle fire. With complete disregard for his own safety, he crawled to the intense enemy fire until he reached the two wounded men”. The Veteran was awarded the Combat Infantry Badge, Vietnam Campaign Medal with ‘60 device, Army Commendation Medal with “Valor” device and the Vietnam Service Medal with two campaign stars (battle). His service personnel records (SPRs) confirm his MOS as an Infantryman (11B). The Veteran states he began experiencing low back pain directly after the mortar incident made reference above. As this incident occurred during combat in Vietnam, the in-service injury element of the claim is established. As far as the nexus element, since 1987, the Veteran has provided competent and credible statements to the effect that he has experienced low back pain ever since the mortar blast in Vietnam. In this regard, service treatment records (STRs) reflect that in May 1968, the Veteran was aero evacuated from the field since he could not walk due to his back pain. STRs also show that he complained about chronic low back pain at least five times thereafter. Furthermore, his separation medical exam dated April 1969, reflects a complaint of “chronic low back pain since July 1968.” A review of the Veteran’s private medical records reveals that two of his private health providers submitted opinions as to the etiology of his current condition. To that extent, in an opinion dated June 2014, the Veteran’s orthopedic surgeon, Dr. A.D.A., stated that the current problems involving his patient’s chronic low back pain are related to the injury which occurred in Vietnam in 1968. A second earlier opinion dated June 2004 from Dr. J.T., the Veteran’s chiropractor, confirmed he was evaluated for a neck injury sustained after an accident in 2004. However, during the examination the doctor noted there was “apparent evidence” of an old injury to his lumbar and pelvic regions. Based on his diagnosis, Dr. J.T. noted the Veteran is still suffering from the weakening effects of the injuries he sustained in Vietnam. The doctor added that the Veteran will continue to have ongoing weakness and disability regarding his capacity to function as a male his age. The Veteran was afforded a VA examination in October 2013. In the opinion rendered, the examiner stated: “I do not think that the described incident while in service has aggravated this [V]eteran’s back condition beyond its natural progression.” The examiner’s rationale relied on that there was virtual little physical or functional deficit during the examination. The Board finds the Veteran’s private doctors’ opinions persuasive to the extent that these two medical providers had reviewed the Veteran’s medical records as part of their preparation for proper assessment and treatment of the low back condition. The Board assigns probative weight to the Veteran’s chiropractor’s finding as to the pre-existence of an old injury to the lumbar and pelvic regions, unrelated to the neck injury in 2004. While there is some indication of a low back condition preexisting service, the Board does not find that it is undebatably so. Therefore, the Veteran is presumed sound and the low back injury is shown to have first manifested during combat service. In view of the credible history of the Veteran experiencing low back pain since that time, and the two medical opinions weighing in favor of a nexus, the Board finds that the Veteran’s current low back condition is related to service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a low back condition is warranted. Based on the evidence, the condition is best characterized as lumbar strain with degenerative changes. 3. Service connection for a right knee condition. The Veteran similarly contends that service connection is warranted for a right knee condition. Unlike the low back condition claim discussed above, service connection is not warranted for a right knee condition because the evidence does not show the same type of history of symptoms and the medical opinion evidence as to nexus does not weigh in favor of the claim. Although combat service is shown, and a right knee injury would be consistent with such, the Veteran’s STRs account for one complaint about his right knee, which was reported during his separation examination. He reported that his right leg was giving out on rising to standing. The complaint was also noted by the examiner as a “trouble with back, knee, and leg.” After service, VA treatment records account for non-recurrent right knee complaints beginning in November 2011. No prior history for right knee complaints was found. Private medical records reflect that, in October 2008, the Veteran visited Dr. A.D.A. for right knee pain. The doctor noted the Veteran has suffered from right knee pain for approximately four to five months. Dr. A.D.A. further noted that the Veteran’s right knee symptoms followed a seemingly minor twisting injury, after which he has had increasing knee pain. As a result, the Veteran underwent a unicompartmental arthroplasty of the right knee. Therefore, according to Dr. A.D.A. notes, the right knee injury took place on or around May 2008. Furthermore, the doctor stated the Veteran denies any history of prior knee problems. Thus, the history of low back injury and complaints is not similarly shown for the right knee as the evidence tends to show post-service onset without sufficient evidence of a history of experiencing right knee problems since service. The Veteran was afforded a VA examination in October 2013. X-rays of the right knee revealed an unicondylar prosthesis without evidence of hardware complication, as well as preservation of the lateral compartment joint space and patellofemoral joint space. Based on the overall examination and review of the medical records, the examiner indicated that the two precipitating injuries causing the spontaneous osteonecrosis of the right femoral condyle were sustained years after the Veteran returned from military service and therefore, not related to military service. The examiner added that the Veteran denied prior history of knee problems. In view of this evidence, the Board finds that the Veteran’s current right knee condition is not related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a right knee condition is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel