Citation Nr: 20005356 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-55 970A DATE: January 22, 2020 ORDER Entitlement to service connection for bilateral knee condition is granted. Entitlement to service connection for bilateral feet condition is granted. Entitlement to service connection for low back condition is granted. REMANDED Entitlement to service connection for any psychiatric disorder, to include major depressive disorder (MDD), posttraumatic stress disorder (PTSD), and anxiety is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral knee condition is etiologically related to active service. 2. Resolving reasonable doubt in the Veteran’s favor, his bilateral feet condition is etiologically related to active service. 3. Resolving reasonable doubt in the Veteran’s favor, his low back condition is at etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to April 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In November 2019 the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing has been associated with the Veteran’s record. The Board observes that additional medical evidence was received by VA after the September 2017 Statement of the Case (SOC) that denied service connection for depression, PTSD, and anxiety; bilateral foot condition; bilateral knee condition; and a lower back condition. However, the Board notes the Veteran waived RO consideration of any additional evidence during the November 2019 hearing. As such, this matter does not need to be remanded and is properly before the Board. Finally, the Board has combined and recharacterized the Veteran’s claims for service connection for MDD, PTSD, and anxiety as a claim for service connection for any acquired psychiatric disorder, to include MDD, PTSD, and anxiety in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). This issue will be addressed in the REMAND section below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (the Court) has held that in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for bilateral knee condition The Veteran contends that he is entitled to service connection for a bilateral knee condition resulting from active service. See November 2019 hearing transcript. The Board acknowledges that the Veteran meets the current disability element of service connection, as he was recently diagnosed with bilateral knee joint osteoarthritis and right knee instability. See October 2019 knee and lower leg conditions DBQ completed by a private medical doctor. The Board notes that subsequent to his March 2015 claim for service connection, the Veteran was afforded an October 2015 VA knee and lower leg conditions examination. The Veteran reported pain in both knees which he describes as “achy in nature” and swelling. The Veteran was diagnosed with bilateral knee degenerative arthritis. The examiner opined that the Veteran's right and left knee degenerative joint disease (DJD) was not incurred in or caused by the claimed in-service injury, event or illness. As a rationale for the opinion, the examiner noted the Veteran's service treatment records (STRs) reflect treatment for acute and minor bilateral knee complaints which resolved during active service. Additionally, the Veteran did not have any significant or chronic bilateral knee conditions documented in his STRs. In an April 1978 periodic physical examination, the Veteran signed a statement in Block #73 attesting “To the best of my knowledge and belief, I do not have any physical defects.” The physical examination of his lower extremities, including both knees, was normal. The examiner noted a January 1978 treatment note establishing that the Veteran complained about acute knee pain. The Veteran was afforded an x-ray; results show that his knee was essentially normal and revealed no pathology. The examiner noted that the Veteran simply did not have DJD of this knee during active duty and the first medical evidence establishing right and left knee DJD was August 2015, more than three decades after his separation from active service. The examiner noted that the types of degenerative changes seen in the Veteran's knees are typically age related and are not unusual for a person of his age. The examiner concluded by noting the Veteran’s bilateral knee DJD was not incurred in or caused by any in-service injury, event or illness. The Board also notes an October 2019 knee and lower leg conditions DBQ completed by a private medical doctor. The provider confirmed diagnoses of bilateral knee strain (1975), right knee meniscal tear (2014), bilateral knee joint osteoarthritis (2019), and right knee instability (2019). The Veteran reported he injured his right knee in service that resulted in a meniscal tear which has gotten worse over time leading to a limited range in motion and causing problems with walking, standing, and squatting due to pain. The provider opined that the Veteran’s bilateral knee condition is at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for the opinion, the provider noted that after reviewing the Veteran’s STRs, specifically treatment records dated January 1979, May 1979, June 1979, and November 1979, the Veteran was diagnosed and treated for right knee strain to rule out meniscal tear while in service. The Veteran continued to have limited range of motion and pain after separation from active service. The Veteran was diagnosed in 2014 with a meniscal tear that resulted over time into osteoarthritis, and he is currently being evaluated and treated at a VA medical center (VAMC). The provider noted that medical literature supports that knee injuries can cause pain, swelling, and stiffness during repetitive use; if they are not properly treated, injuries can lead to serious chronic/conditions such as a tear and more chronic conditions such as arthritis that can affect other connected joints. It was also noted that the Veteran exhibited limited range of motion and pain in the left knee during the examination. A review of the Veteran’s X-ray report establishes that he was diagnosed with left knee osteoarthritis that is more likely than not due to overcompensation of the right knee meniscal tear and osteoarthritis. The provider noted that medical evidence supports that knee injuries including arthritis are often caused by overcompensating for the injured lower extremity, causing favor to the unaffected side/joints. This favoring of the unaffected side could result in chronic pain/injury/arthritis. Based on a review of the record, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s bilateral knee condition is related to service. The Board is mindful of the negative October 2015 medical opinion; however, this opinion only serves to place the medical evidence in a state of relative equipoise with the October 2019 private medical DBQ. Resolving all doubt in the Veteran’s favor, the Board finds that the record is in relative equipoise on all material elements of the claim for direct service connection. The Board notes that the benefit of the doubt mandate is triggered when the evidence reaches a stage of equipoise. In this matter, as there is competent medical evidence both in favor of and against the claim, the Board is of the opinion that this point has been attained. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Accordingly, service connection for a bilateral knee condition is warranted. 2. Entitlement to service connection for bilateral feet condition The Veteran contends that he is entitled to service connection for a bilateral foot condition resulting from active service. See November 2019 hearing transcript. The Board acknowledges that the Veteran meets the current disability element of service connection. See VA Podiatry Clinic treatment record dated January 2017. Turning to the nexus element of service connection, the Board notes that the Veteran was afforded a VA foot conditions, including flatfoot, examination in October 2015. Following an in-person examination and review of the Veteran’s e-folder, the examiner confirmed a diagnosis of bilateral flatfoot from 1974. The Veteran reported he started having bilateral foot pain early in active service and was provided arch supports to wear in his boots. The examiner opined that the Veteran’s bilateral flat feet were less likely than not incurred in or caused by the claimed in-service injury, event or illness. As a rationale for the opinion, the examiner noted the Veteran was treated for acute foot complaints during active service that are not related to flat feet (callous and tingling in toes after cold exposure). Additionally, the Veteran’s STRs do not include any specific treatment or complaints of flat feet. The examiner noted that the Veteran’s complaints during active service were not consistent with flat feet pathology. In an April 1978 periodic physical examination, the Veteran signed a statement in Block #73 attesting “To the best of my knowledge and belief, I do not have any physical defects.” The Veteran did not complain about his feet. There is no evidence in his STRs that the Veteran had a chronic symptomatic flatfoot condition during active service. The examiner noted that post separation medical evidence does not note treatment visits for a continuing or chronic problem of the feet. On the other hand, the Board notes the Veteran submitted a January 2017 letter from his treating VA doctor reporting that the Veteran had been followed for several years by Podiatry for painful bilateral flatfoot. The VA doctor noted that the condition has remained recalcitrant to conservative care. The VA doctor then opined that the Veteran’s bilateral flatfoot appears to be related to past service duties, based on a review of the Veteran’s December 1974, May 1978, September 1978, and November 1979 STRs. The Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s bilateral flat feet are related to service. The Board is mindful of the negative October 2015 medial opinion; however, this opinion only serves to place the medical evidence in a state of relative equipoise with January 2017 medical opinion from the Veteran’s VA doctor. Resolving all doubt in the Veteran’s favor, the Board finds that the record is in relative equipoise on all material elements of the claim for direct service connection. In this matter, there is competent medical evidence both in favor of and against the claim, triggering the benefit of the doubt mandate. Ortiz, supra. Therefore, service connection for a bilateral knee condition is warranted. 3. Entitlement to service connection for low back condition The Veteran contends that he is entitled to service connection for a low back condition resulting from active service. See November 2019 hearing transcript. The Board acknowledges that the Veteran meets the current disability element of service connection, as he was recently diagnosed with radiculopathy and also carries diagnoses for mechanical back pain syndrome (2012), lumbosacral sprain/strain (1975), degenerative disc disease (2016), foraminal/lateral recess/central stenosis (2016) spondylosis/isthmic spondylolisthesis (2016). See October 2019 back (thoracolumbar spine) conditions DBQ completed by a private medical doctor. The Board notes that the Veteran was afforded a VA back (thoracolumbar spine) conditions examination in October 2015. After an in-person examination and review of the claims file, the examiner confirmed a diagnosis of lumbar spine mild degenerative changes. The Veteran reported low back pain after surviving a helicopter crash, and he does not remember seeking medical attention for low back pain at any other time during active service. The Veteran reported that he has constant low back pain which he describes as sometimes sharp and sometimes aching. The examiner opined that the Veteran's lumbar spine degenerative change was not incurred in or caused by the claimed in-service injury, event or illness. As a rationale for the opinion, the examiner noted the Veteran's STRs reflect treatment for acute back complaints diagnosed as muscle spasm which resolved. The examiner specifically noted that many of the treatment records in the Veteran’s STRs that mention low back complaints were not due to musculoskeletal back problem but due to sexually transmitted diseases (STDs) with associated low back pain. The examiner noted that the Veteran’s STRs do not document a chronic lumbar spine condition. In addition, during a periodic physical examination in April 1978, the Veteran signed a statement in Block #73 attesting “To the best of my knowledge and belief, I do not have any physical defects.” The physical exam of the Veteran’s lumbar spine was normal at that time. The examiner noted that post separation medical evidence does not note treatment visits for a continuing or chronic lumbar spine condition and the first medical evidence establishing a lumbar spine condition was August 2015, more than three decades after separation from active service. The examiner noted that the types of “mild” degenerative changes in the Veteran's lumbar spine are typically age related and are not unusual for a person of his age. Simply put, the examiner opined that the degenerative changes of the Veteran’s lumbar spine were not incurred in or caused by any in-service injury, event or illness. The Veteran’s claim file also includes an October 2019 knee and lower leg conditions DBQ completed by a private medical doctor. The provider opined that the claimed condition is at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for the opinion, the provider noted that the Veteran’s STRs establish that he was evaluated and treated for lumbosacral strain in June 1975, March 1980 and November 1979. The Veteran’s STRs establish that he complained about low back pain following physical exertion, and the symptoms continued to worsen. The provider noted that the Veteran received physical therapy for low back pain during active service. The Veteran continued to have back pain and sought treatment for back pain after separation. VA treatment records note the Veteran was subsequently diagnosed with degenerative arthritis of the spine and continues to be evaluated and treated at the VA clinic for the condition. The provider noted that medical literature suggests that back injuries/trauma can lead to long-term effects such as chronic back pain/strain, radiculopathy, or arthritis. When the back is injured and if the individual is constantly adding additional stress through lifting or prolonged activity, it causes wear and tear on the joints/disc and bones of the spine. Resolving all doubt in the Veteran’s favor, the Board finds that the record is in relative equipoise on all material elements of the claim for direct service connection. The Board is mindful of the negative October 2015 medical opinion; however, this opinion only serves to place the medical evidence in a state of relative equipoise with the October 2019 private medical DBQ. As to this claim, there is competent medical evidence both in favor of and against the claim, triggering the benefit of the doubt mandate. Ortiz, supra. Therefore, service connection for a low back condition is warranted. REASONS FOR REMAND As noted above, the Board combined the individual claims for service connection for MDD, service connection for PTSD, and service connection for anxiety and reclassified the Veteran’s claim per Clemons to entitlement to service connection for an acquired psychiatric disorder, to include MDD, PTSD, and anxiety. The Board notes that during the November 2019 hearing, the Veteran asserted three distinct stressors related to his acquired psychiatric disorder and his spouse testified that the Veteran has nightmares at least three or four times a month. In addition, VA treatment records dated March 2017 note chronic depression, PTSD and VA treatment records dated June 2015 note symptoms of flashbacks. The Board observes that the Veteran has not been afforded a VA examination to address the nature and etiology of his claimed psychiatric disabilities. This should be corrected on REMAND. A VA examination is necessary in this instance to clarify whether the Veteran has any psychiatric diagnoses which are etiologically related to service. The matters are REMANDED for the following action: Schedule the Veteran for the appropriate VA mental disorders examination, to be performed by a psychiatrist or psychologist, to determine the existence and etiology of any psychiatric disorder found to be present. The claims folder, including a copy of this remand, must be provided to the examiner for review of pertinent documents therein, and the examination report should reflect that such review was accomplished. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the examination report. If any psychiatric disorder is diagnosed (e.g., major depression, PTSD, or generalized anxiety disorder), the examiner is asked to opine if it is at least as likely as not (a 50 percent or greater probability) that such disorder is etiologically related to the Veteran’s active duty service. All opinions must be supported by a complete rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.