Citation Nr: 20021079 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-08 222 DATE: March 24, 2020 ORDER Service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran’s lumbar spine disability first manifested in service and was incurred in service. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to December 1983. This appeal comes before the Board of Veterans’ Appeals (Board) from the August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). “To establish a right to compensation for a present disability, a Veteran must show: “(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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2019) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). In rendering a decision on appeal 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 evidence favorable to the claimant. 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lumbar Spine Disability The Veteran maintains that he initially injured his back during service. He contends that his lumbar spine disability worsened throughout the years, ultimately leading to several back surgeries. Upon review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability first manifested in service and was incurred in service. Service treatment records contain numerous entries pertaining to complaints and treatment relating to the Veteran’s low back. Notably, the Veteran began receiving treatment for low back pain following an October 1976 automobile accident. These complaints and treatment continued until 1983 (the year the Veteran was discharged from active duty service). Service treatment records reflect several diagnoses of a lumbar strain, to include one notation of a “severe low back strain” requiring hospitalization for 5 days. See September 1982 service treatment record. The September 1982 note further indicated that the Veteran had injured his back in 1977 and had experienced “recurrent low back pain since the injury.” In a September 1983 treatment note (a few months prior to service separation), it was noted that the Veteran had a history of back problems “since 1977.” The Veteran opted not to participate in a service separation medical examination. Following service separation, private and VA treatment records show that the Veteran underwent spine surgery in 1989. He had subsequent surgeries thereafter. The evidence also includes a July 2015 VA spine examination. At that time, the examiner diagnosed the Veteran with degenerative disease of the lumbar spine. The examiner opined that the Veteran’s spine disability was not related to service. In support of this opinion, the examiner stated that degenerative disease was a natural process of aging and was appropriate for the Veteran’s age. Moreover, the examiner stated that the Veteran had an “acute” back strain, which resolved in service. The examiner stated that he could not locate any documented evidence of serious injury or a chronic condition in service. The Board finds that the July 2015 medical opinion lacks probative value. In this regard, the examiner did not address the numerous service treatment records showing that the Veteran had “recurrent” and “severe” low back strains in service. Given the lack of discussion of the voluminous service records discussing the Veteran’s spine disability, it appears that the examiner did not review the record in its entirety. Moreover, the Veteran has undergone several spine surgeries; the examiner did not explain how this was “appropriate” for the Veteran’s age or in accordance with the normal aging process. The Veteran also submitted a private medical report from Dr. Gammons dated in May 2016. At that time, the Veteran indicated that his chronic pain issues pertaining to the low back and knee began in service. Dr. Gammons provided diagnoses of chronic low back pain, lumbar disc degeneration, and osteoarthritis. It was then opined that he Veteran’s current pain diagnoses resulted from his military service. No specific rationale was provided. The Board finds that, although not specifically diagnosed with a degenerative disc disease in service, the Veteran underwent spinal surgery in 1989, approximately 6 years following service separation. Given the severity of the Veteran’s disability (i. e., requiring surgery), it is reasonable to assume that the Veteran had back symptoms prior to 1989. The Board also finds that the Veteran is competent to report back pain and symptoms associated with a lumbar spine disorder, including at the time of the initial injury in service. The Veteran’s service treatment records, containing numerous complaints, diagnoses, and treatment for low back pain and lumbar strains, also weigh in favor of the Veteran’s claim. The Veteran has consistently reported that his back pain began in service and persisted since that time, ultimately requiring spinal surgeries of the same area. There is no competent and probative evidence to the contrary. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s lumbar spine disability was incurred in service. As such, service connection for is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND Right Knee The Veteran maintains that he has a right knee disability that is related to service. Service treatment records show that in January 1982, the Veteran was shot in the leg with pellets from a shotgun during a hunting accident. The Veteran was subsequently seen for right knee pain in October 1982 and December 1982. An October 1983 service treatment record also indicated that the Veteran complained of right knee pain for 2 days. At that time, the Veteran reported that he was carrying heavy boxes upstairs and now had pain to the medical aspect of the right knee. The Veteran was diagnosed with a knee sprain. The Veteran was afforded a VA knee examination in July 2015. At that time, the examiner diagnosed the Veteran with degenerative arthritis of the right knee. In providing a negative nexus opinion, the examiner stated that the Veteran’s degenerative disease was part of the natural aging process. Moreover, the examiner stated that the Veteran had an episode of “acute” right knee pain that was treated and resolved. It was indicated that x-rays showed evidence of a foreign body in the soft tissue and not in the knee joint. The Board find this opinion to lack probative value for several reasons. First, service treatment records show two injuries pertaining to the right knee in service (pellet wound and right knee sprain). Further, the examiner did not address whether the gunshot injury (pellets which remain in the soft tissue portion of the Veteran’s knee) have resulted in any residuals, to include scarring or pain. This is especially important since the Veteran has reported having right knee pain since the incident involving the gunshot wound. Moreover, Social Security Administration records indicate that the Veteran underwent arthroscopic surgery on the right knee for a “torn meniscus” in approximately 2014-2015. This injury and resulting surgery to the right knee was not addressed by the examiner. For these reasons, the Board finds that a new VA examination is required to address the exact nature and likely etiology of the Veteran’s right knee disability. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. The claims file must be made available to and reviewed by the examiner. All indicated diagnostic testing, including x-rays, should be done. After reviewing the claims file and examining the Veteran, the examiner should provide the following: (a.) List all current diagnoses related to the Veteran’s right knee. *SSA records indicate that the Veteran underwent arthroscopic surgery on the right knee for a “torn meniscus” in approximately 2014-2015. **Please indicate whether the Veteran has any residuals associated with the pellet wounds, to include scars. (b.) For each current diagnosis concerning the right knee, provide an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) was incurred in or is otherwise related to service. (c.) A complete rationale for all opinions must be provided. 3. Then, readjudicate the claim on appeal. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.