Citation Nr: 1808758	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-11 302	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a lower back disability.

2.  Entitlement to service connection for a left knee disability.

3.  Entitlement to service connection for a vision disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A. Hampton, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1965 to August 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
 
The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in November 2017.  A transcript of the hearing is of record.

The issue of entitlement to service connection for a vision disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's lower back disability is etiologically related to his active service.

2.  The Veteran's left knee disability is etiologically related to his active service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a lower back disability have been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for service connection for a left knee disability have been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110 (West 2015); 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).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 claimant.  38 U.S.C.A. § 5107 (West 2015); 
38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The record shows the Veteran has been diagnosed with lower back and left knee strains.  He contends these disabilities are related to in-service duties performed as a heavy equipment mechanic, to include lifting heavy tank and trucks parts, and repeatedly getting into and out of vehicles.  He also contends his lower back and left knee were injured in two motor vehicle accidents occurring in 1967 and 1968 in Germany.  

The Veteran explained that although he did not seek medical care for lower back and left knee pain during service, to include following his accidents, he did experience pain in service which has persisted to the present day.  Although the Veteran attempted to obtain records related to his in-service motor vehicle accidents, he was informed the records were no longer available due to the passage of so many years.

In November 2017, the Veteran submitted a medical opinion authored by a private physician's assistant.  A private physical therapist also signed the opinion.  The opinion's author stated that both the Veteran's lower back and left knee conditions could have existed years before manifesting themselves, and that the injuries to the lumbar spine and left knee suffered during military vehicle accidents in 1967 and 1968 were the likely cause of both conditions.  In this regard, the author stated that motor vehicle accidents were known to be a cause of sheer stress, particularly to the spinal column, and commonly damaged discs, leading to degeneration and radiculopathy.

The Board first notes that upon a review of the record, the Veteran's accounts of his in-service motor vehicle accidents and his recollection of in-service lower back and left knee pain have remained consistent throughout the period of the claim.  For this reason, the Board finds the Veteran credible.  In addition, after a thorough review of the record, the Board notes there is no medical evidence to contradict the November 2017 opinion, discussed above, with respect to the etiology of the Veteran's current lower back and left knee disabilities.

As such, the Board finds the evidence is at least in equipoise as to whether the Veteran's lower back and left knee disabilities are etiologically related to his service, to include injuries suffered in motor vehicle accidents in 1967 and 1968.  Accordingly, granting of service connection for lower back and left knee disabilities is warranted.


ORDER

Entitlement to service connection for a lower back disability is granted.

Entitlement to service connection for a left knee disability is granted.



REMAND

The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2015); 38 C.F.R. § 3.159(c)(4)(i) (2017).  The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold.  McLendon, 20 Vet. App. at 83.

In this case, the record shows the Veteran has continuously complained of worsening and/or blurry vision, as well as seeing "lights."  He contends that as a mechanic during service, he used a torch for welding and cutting metal, sometimes without eye protection, and that shortly following service, he was prescribed eyeglasses for the first time.

Under these circumstances, the Board finds a remand for a VA examination is warranted pursuant to McLendon, in order to assess the etiology of any vision disability present during the period of the claim.

Accordingly, the case is REMANDED for the following actions:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

2.  Then, afford the Veteran a VA examination to determine the nature and etiology of all vision disabilities present during the period of the claim.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated tests and studies should be performed.  

Following the examination and a review of the relevant records and lay statements, the examiner should identify all vision disabilities present during the period of the claim.

Then, with respect to each identified vision disability, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran's military service.

In providing his or her opinion, the examiner must address the Veteran's statements to the effect that as a mechanic in service, he welded and cut metal with a torch, often without eye protection, and that he was prescribed eyeglasses for the first time shortly following service.

The examiner must provide a rationale for any proffered opinion.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

3.  Undertake any other development determined to be warranted.

4.  Then, readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).



Department of Veterans Affairs