Citation Nr: 20004821 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-24 687 DATE: January 21, 2020 ORDER Entitlement to service connection for a chronic back condition is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT The Veteran’s chronic back condition is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a chronic back condition have been met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from July 1975 to August 1979. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Entitlement to service connection for a chronic back condition is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.03. Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran is entitled to the benefit of the doubt standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his chronic back condition is due to an unreported military sexual trauma (MST). In particular, he stated that he was brutally assaulted and sought medical attention for injuries but was not honest about what had occurred for fear of retaliation. This is corroborated in a February 2014 buddy statement by the Veteran’s ex-wife where she stated that the Veteran came home limping with a bloody nose, and his shirt was ripped with a couple buttons missing. Further, when the Veteran took his shirt off, she said she noticed red marks on his middle and lower back. Also, she stated that the Veteran said three bullies he fought with previously caught him alone in the bathroom and beat him, kicked him, and sexually degraded him. In a November 2013 private medical opinion, Dr. M.S. opined that the Veteran’s chronic back condition more likely than not started from an injury sustained in 1975 where he was kicked in the back several times. Dr. M.S. reasoned that the degeneration started at this point and continued to worsen over the years. In the August 2015 VA examination, the VA examiner opined that it is less likely than not that the Veteran’s chronic back condition was incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reasoned that there is no record of an assault in-service. Also, the available records regarding the current back problem began in 1995, twenty years after the alleged attack. Based upon review of the evidence of record, the Board finds that the Veteran’s chronic back condition is related to his MST. Dr. M.S. opinion is highly probative because he has treated the Veteran since June 2011 for his chronic back condition. The August 2015 VA medical opinion is less probative because the VA examiner did not fully consider the lay statements and buddy statement. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a chronic back condition is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to service connection for a right knee condition is remanded. In the August 2015 VA examination, the VA examiner opined that it is less likely than not that the Veteran’s right knee condition was incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reasoned that there is no documentation of a physical assault in the Veteran’s service treatment records. Also, there is no medical records relating to a knee problem for the period between service discharge and 2013. The Board finds August 2015 VA medical opinion inadequate because it is primarily based on the lack of medical documentation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate because the examiner did not comment on the Veteran’s report of in-service injury and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion). The VA examiner did not consider the competent lay statements of the Veteran and the buddy statement from his ex-wife. Id. Thus, a supplemental medical opinion is necessary. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination of the Veteran is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The March 2013 Statement in Support of Claim. b. The June 2013 Statement in Support of Claim for PTSD Secondary to Sexual Assault. c. The February 2014 buddy statement. The clinician must opine as to whether the Veteran’s right knee condition is at least as likely as not (50 percent or greater probability) began during active service, or is related to his MST. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. 2. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.