Citation Nr: 20009599 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 12-33 928 DATE: February 5, 2020 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a right knee meniscus tear, to include secondary to right knee anterior cruciate ligament (ACL) repair residuals, is denied. FINDINGS OF FACT 1. The Veteran has experienced chronic low back pain since his separation from service. 2. The evidence does not demonstrate a current right knee disability separate from the Veteran’s service-connected right knee ACL repair residuals. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee meniscus tear, to include secondary to right knee anterior cruciate ligament (ACL) repair residuals, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1994 to March 2000. The Veteran testified before the undersigned Veterans Law Judge during a March 2013 videoconference hearing; a transcript is of record. In a December 2017 decision, the Board denied the Veteran’s appeals for service connection for a low back disability and for a right knee meniscus tear. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the parties, the Secretary of VA and the Veteran filed a joint motion for remand (JMR) to vacate the Board's December 2017 decision. In a July 2018 Order, the Court granted the motion. The parties to the JMR agreed that the Board failed to address why the Veteran’s ongoing back pain cannot constitute continuity of symptomatology sufficient to establish service connection for degenerative disc disease, or pain as a separate disability. The parties also agreed that the Board failed to provide adequate reasons and bases on the grounds that the Board failed to address the Veteran’s in-service diagnosis of mild scoliosis. With regards to the claimed meniscus tear, the parties determined that the Board failed provide adequate reasons and bases on the grounds that the Board failed to address the June 2015 VA examiner’s statement that a scope is required to evaluate the medical meniscus Second, the parties agreed that the June 2015 VA examination was inadequate because the examiner did not address the Veteran’s theory of service connection for a meniscus tear secondary to the Veteran’s ACL repair. Based on the July 2018 JMR, the Board again remanded the appeals in a March 2019 decision for further development including a new VA examination. The actions requested in the March 2019 remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in- service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a low back disability The Veteran contends that his current low back disability was caused by a motor vehicle accident during service in May 1995. In this instance, the Veteran has been diagnosed with degenerative disc and joint disease. Thus, the Veteran has a current disability for the purpose of establishing service connection. Likewise, the Veteran's STRs reveal that he sustained back injuries in a motor vehicle accident in May 1995. Therefore, the second prong of service connection is met. Thus, the Board must determine whether there is a nexus between the Veteran's low back degenerative disc and joint disease and his in-service complaints of low back pain following the motor vehicle accident. After the March 2019 Board remand, the Veteran underwent a new VA examination. The VA examiner determined that the Veteran did not have a diagnosis of scoliosis. He also opined that the Veteran's degenerative disc and joint disease was less likely incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that his degenerative arthritis was found years after service and he had normal x-rays in service. He also stated that there is no connection between a back strain from a motor vehicle accident and degenerative changes found years later. However, the Board notes that the Veteran has reported chronic pain in the low back since the motor vehicle accident in May 1995. While initially noted as a “low back strain” at the time of the accident, the Veteran's STRs show continuous complaints of low back pain throughout service in December 1995, January 1996, January 1998, February 1998, April 1998, October 1999, December 1999, and February 2000 at his separation examination. He noted no low back pain or abnormalities in his September 1994 enlistment examination. Further, he was medically discharged from service after his ACL repair, but his Medical Evaluation Board proceedings also cited chronic low back pain beginning in May 1995 with no relief with physical therapy or chiropractic treatment as a basis for being physically unfit for service. Likewise, the Army made a finding in January 2000 that his lower back injury was sustained in the line of duty. The Veteran sought treatment for his low back pain continuously after service including chiropractic care at a multiple private facilities beginning in August 2003 through 2007. He then sought treatment at the Wichita VAMC in 2008 through the present. Degenerative changes were first noted in October 2012. The Board finds that the October 2019 VA opinion is inadequate for rating purposes, thus of little probative value. The examiner failed to account for the continuity of symptomatology the Veteran reported, which is supported by the evidence of record. Although the Veteran’s degenerative disc and joint disease was not diagnosed until 2012, he showed consistent and continuous complaints of the same symptoms of low back pain beginning after the in-service motor vehicle accident in May 1995 through the present. The Board notes that for certain "chronic" conditions including arthritis, continuity of symptomatology after discharge can satisfy this nexus element of service connection even in the absence of favorable nexus evidence. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Accordingly, while the VA examiner did not provide a favorable nexus opinion, the Board has resolved reasonable doubt in the Veteran's favor and finds through his lay statements and contemporaneous medical evidence that he had continuous symptoms of low back pain since service separation and meets the requirements of presumptive service connection for a low back disability under 38 C.F.R. § 3.303(b). 2. Entitlement to service connection for a right knee meniscus tear, to include secondary to right knee anterior cruciate ligament (ACL) repair residuals The Veteran asserts that he has a right knee meniscus tear that is secondary to his service-connected ACL repair residuals. The Board finds that there is no medical support in the record for the Veteran’s claimed right knee meniscus tear. A review of the medical evidence of record reveals that the Veteran underwent ACL reconstruction surgery in 1999, but no meniscal pathology was found in the operation report for ACL reconstruction surgery. In the July 2008 MRI, myxoid degeneration was noted in the medial meniscus. A subsequent MRI in October 2011 showed some degeneration of the posterior horn of the medial meniscus, but no acute ligamentous or meniscal tear. The June 2015 VA examiner opined that this refers to early degeneration of the meniscus or a possible small crack or tear that hasn’t reached the surface of the meniscus yet. The June 2015 examiner also stated that a scope is required to evaluate the medial meniscus. In general, the Board is unable to order invasive diagnostic studies. Based on the July 2018 JMR, the Board ordered a new VA examination in a March 2019 remand, whereby the examiner was asked to do whatever testing is appropriate to determine whether it is as likely as not that a meniscal tear exists. The October 2019 VA examiner determined without a scope that the Veteran does not have a current meniscus tear. He reasoned that there is no evidence to suggest a meniscus tear in service, no meniscus tear found at the time of the ACL surgery, and no meniscus tear shown in his most recent MRI in 2017; thus, there is no meniscus tear diagnosis to be related back to service. The Board acknowledges Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), which held that if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability. However, the Board must also emphasize that this does not necessarily establish service connection. Here, the preponderance of the evidence is against a finding that the Veteran currently has a right knee disability separate from the service-connected residuals of a right ACL repair that it would be considered a disability for compensation purposes. While the Veteran believes he has a current disability of a right knee meniscus tear, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Because there is no current diagnosis of a meniscus tear, service connection cannot be established on a direct or secondary basis. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.