Citation Nr: 20019790 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 17-27 413 DATE: March 17, 2020 ORDER Entitlement to service connection for a low back condition is granted. Entitlement to service connection for left and right knee conditions is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s low back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The evidence is at least in equipoise that the Veteran’s left and right knee conditions began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for a low back condition have been met. 38 U.S.C. §§ 1110, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for an entitlement to service connection for left and right knee conditions have been met. 38 U.S.C. §§ 1101, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2011 to March 2015. This case comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in January 2020 and a transcript of that hearing has been associated with the claims file. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). 1. Entitlement to service connection for low back condition is granted. The Veteran claims that his current low back pain is related to rigorous and repetitive impact trauma from his time spent during his active service in the 82nd Airborne Division and at Ranger School. Specifically, he contends that he was required to repeatedly jump out of the airplanes as a parachutist and participate in combat training. He also states that he went to Ranger School, where he had to wear a rucksack of over 100 pounds daily for long periods conducting road marches, field exercises and training. He claims that he made a couple of informal visits to medical personnel to get 800mg of ibuprofen, and that he has had continuous low back pain since it first began in service. See September 2015 NOD. The Veteran has been provided with various diagnosis, to include chronic lumbar strain (August 2015 VA examination), lumbar spondylosis (February 2018 private treatment records/medical opinion), facet joint arthropathy (January 2020 VA examination). The Veteran’s DD 214 and military personnel records confirm that the Veteran received the air assault badge, parachutist badge, global war on terrorism service medal, and certificates of training (ie. for competing basic combative courses), and that he served in the 82nd Airborne Division. His military occupational specialty (MOS) was an armor general. The Veteran’s characterization of his in-service activities relating to jumping out of airplanes and going through physically rigorous training is credible and consistent with the circumstances, conditions, or hardships of such service. See 38 U.S.C. § 1154(a). There are also two positive private nexus opinions concerning his back condition, to which the Board gives probative value. In February 2018, a private medical provider opined that the Veteran’s level of spine degeneration is unusual for someone his age and that it is “reasonable to assume” that his current back condition is due to his paratrooper duties/MOS. There is another private medical nexus opinion (see January 2020 DBQ examination), in which the private nurse practitioner opined that the Veteran’s L5-S1 mild disc bulge (x-ray finding) could be explained by stresses of paratrooper work, and that his symptom of intermittent lower back pain is related to his degenerative changes noted in the MRI. Although the Board notes that the rationales provided for these opinions is somewhat speculative, the Board finds these opinions persuasive, as they are consistent with the circumstances of the Veteran’s MOS/paratrooper duties. The Board also finds the Veteran’s consistent reports of lower back pain since service to both VA adjudicators and various medical providers both competent and credible (see August 2015 VA examination, reporting onset of the back condition since 2012 and carrying heavy equipment on his back in service and feeling some pain in his back; January 2016 VA treatment records, reporting onset of the lower back pain since around 2012; February 2016 initial health primary care treatment records, lower back pain from Ranger school and from being assigned to airborne). Given the consistency of his reports and in light of the circumstances and conditions of his service, the Board finds his statements probative. Additionally, the fact that the Veteran filed his original service connection claim for a lower back condition in May 2015, only three months after his separation from service, tends to support that he had continuous symptoms of lower back pain that began during service. Resolving reasonable doubt in the Veteran’s favor and in light of the Veteran’s competent, credible, and probative statements concerning his continuous symptoms, and also in consideration of the 38 U.S.C. § 1154(a), the Board finds that the evidence is at least in equipoise as to whether the Veteran’s low back condition began during active service, or is otherwise related to an in-service injury, event, or disease (specifically, rigorous and repetitive impacts from jumping out of airplanes, intensive physical trainings). Thus, entitlement to service connection for low back disability is granted. 2. Entitlement to service connection for left and right knee conditions is granted. The Veteran attributes his current right and left knee condition to the same facts addressed immediately above. The Veteran also claims that he has been experiencing continuous symptoms of left and right knee pain and functional limitations since his active service period. See September 2015 NOD. Throughout the appeal period, the Veteran has been provided with various diagnosis, to include bilateral knee pain, bilateral knee strain, left knee strain and chondromalacia left patella. The Veteran’s service treatment records include the Veteran’s report of joint pain in both knees. See April 2013 service treatment records. As discussed in the previous section, the Board finds his descriptions of his in-service activities relating to jumping out of airplanes/rigorous physical trainings credible and consistent with the circumstances, conditions, or hardships of such service. See 38 U.S.C. § 1154(a). There is also a positive etiology opinion concerning his right and left knee conditions, to which the Board affords probative value. After reviewing all pertinent records, a private examiner opined that the Veteran’s knee pain, intermittent knee effusion, and chondromalacia of the left patella are likely due to repetitive impact and stress to the joint as such would occur with history of landing on the joint during parachute landings and repetitive stress during long and frequent running. The examiner also indicated that the Veteran’s pain began in 2013, while performing such physically intensive activities in Ranger School. The Veteran is competent to report the symptoms, and he has consistently reported continuous symptoms of his right and left knee since service (see August 2015 VA examination; January 2016 new patient note, report of bilateral knee pain since 2012; February 2016 initial health primary care assessment note, knee pain from ranger school and from being airborne; see also January 2020 DBQ examination, reporting knees having been worn out due to Airborne operations in the military, jumping out of fixed wing aircraft and Ranger School having put severe undue stress to the knees, and being required to march for a long distance with a rucksack that weighed over 100 pounds, patient reports ongoing intermittent pain of both knees which first started in 2013 while he was in Ranger school and he also reports ongoing functional limitations due to knee pain). Considering the consistency of the Veteran’s reports, supported by the probative medical evidence of record, the Board finds that the Veteran’s testimony/statements/reports of the continuous right and left knee symptoms since active service period credible. Additionally, the Veteran’s having filed his original service connection claim for his right and left knee conditions in May 2015, only three months after his separation from service, tends to weigh heavily in favor of the Veteran that he has experienced continuous symptoms of left and right knee conditions. Resolving reasonable doubt in the Veteran’s favor and in light of the Veteran’s competent, credible, and probative statements concerning his continuous symptoms of his right and left knee conditions since his active service period, and also in consideration of the 38 U.S.C. § 1154(a), the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left and right knee conditions began during active service, or is otherwise related to an in-service injury, event, or disease (specifically, rigorous and repetitive impacts from jumping out of airplanes, intensive physical trainings). Thus, entitlement to service connection for the left and right knee conditions is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.