Citation Nr: 19161908 Decision Date: 08/13/19 Archive Date: 08/09/19 DOCKET NO. 15-27 899 DATE: August 13, 2019 ORDER Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for left knee patellar tendinitis (a left knee disability) is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. FINDING OF FACT The Veteran’s low back disability was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to August 1973. He received a certificate for completing an airborne course for parachutists in July 1972. The Veteran testified before a Veterans Law Judge in February 2019. A transcript of this hearing is of record. Entitlement to service connection for a low back disability The Veteran asserts that he developed a low back disability due to some 15 jumps in service. While the Veteran’s representative raised the theory of secondary service connection as due to knee disabilities in February 2019 hearing testimony, the Board finds that a discussion of this theory is unnecessary as the claim sought is granted on a direct incurrence basis. First, the Board concludes that the Veteran is currently diagnosed with several back disabilities. Specifically, a non-VA chiropractor, Dr. W.B., in a November 2017 letter, mentions that the Veteran suffers from lumbar lordosis, broad based disc bulges, severe facet arthrosis, significant foraminal narrowing, and anterolisthesis. Next, the Board observes the incurrence of a back disability in service. As mentioned above, the Veteran earned a certificate for completing an Airborne Course at Fort Benning, GA. While the Veteran’s service records do not expressly record treatment for back pain, the Board Veteran credibly asserted in January 2015 and February 2019 hearings that he did not seek help for back pain because he was told by his superiors to “suck it up,” and that there was nothing physically wrong with his back. This explains why the Veteran’s August 1973 separation examination report does not note a chronic back disorder. Moreover, the Board notes that the Veteran did not seek treatment for a low back disorder until 2012. Regardless of the medical evidence, however, the Veteran is competent to report observable symptomatology of an injury, to include recurrent pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran’s statements and the medical evidence explain this gap. Specifically, the Veteran and his representative credibly attest that the Veteran’s only reason for not seeking treatment for decades was that he did not know he was entitled to do so. Finally, a medical opinion from Dr. W.B., a licensed chiropractor, dated November 2017, connects the Veteran’s current back disabilities to his jumps in service. Specifically, Dr. B. stated that it “takes approximately 35 years of degenerative process” to develop the disabilities from which the Veteran suffers. He also states that the level of the Veteran’s trauma can be directly associated with and correlate with trauma associated with multiple jumps from an airplane. Finally, while this testimony is not directly referenced in the medical records, the Veteran testified in February 2019 that Dr. B. advised him that because his low back degraded more rapidly than other parts of his body, his low back disabilities are more likely to be due to his multiple jumps in service. The Board finds that the competent medical evidence of record places the Veteran’s appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for a low back disability. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left knee patellar tendinitis (a left knee disability) is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. In his November 2013 VA examination, the Veteran was noted to suffer from bilateral patellar tendinitis with degenerative disease. The examiner noted pain on movement and palpation, as well as the need for a knee brace. At his hearing in February 2019, the Veteran testified that both of his knee disabilities had worsened in severity since his last examination in July 2013. Specifically, the Veteran testified that in addition to two braces, he had acquired a cane and a walker. He also described his knee as “collapsing,” and his representative stated that the Veteran had to stop and take breaks during their walk to the hearing room. The Veteran attests that these symptoms were not present at his last VA examination in November 2013. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination is appropriate. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the Veteran is entitled to a new VA examination to determine to current severity of his right ankle condition. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding treatment records from any VA facility or private treatment provider from which the Veteran has received treatment. If the Veteran has received additional private treatment records, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the current severity of his left and right knee disabilities. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. Both knee joints should also be tested in: active motion; passive motion; weight bearing; and non-weight bearing. In addition, to afford the Veteran an accurate rating, both knees must be tested for ankylosis, recurrent subluxation, lateral instability, and any impairment of the tibia and fibula, to include non-union or malunion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should address in detail the additional functional impairment and range of motion loss in both knees due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion to the best of his or her ability. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia, Associate Counsel