Citation Nr: 20021591 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-15 621 DATE: March 26, 2020 REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a lower back (lumbar) disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from February 1974 to August 1983, and from November 1983 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran reported that he injured his knees by carrying heavy supplies up and down ladders and jogging in full gear while in service. The Veteran stated that he initially managed his knee pains but over the years, the pain in his knees has worsened compromising his gait and mobility. In a statement date November 2019, the Veteran recalled that he had to carry a lot of heavy tools, parts and other things while he was a diesel mechanic in service. He said that he spent a lot of time bent over working in tight spaces, and had to crawl on his knees to make repairs. He started struggling to bring tools and parts up from the lower deck and his knees started to give out. The Veteran’s records reflect that he served in the Persian Gulf from March 1991 to March 1992. He was part of a “clearing team for the harbor and was responsible for moving out all the tugboats that the Iraqi’s used to block the harbor. He started to have constant knee pain which continued to worsen when he got out of the service. He was unable to maintain a job as a pump man due to his knee pain. He stated that he can no longer work due to prolonged walking and standing. He said that he can’t do any lifting or lift his one-year old grandson due to the pain. According to the Veteran’s records, he was last employed as a mariner merchant pump man from 2004 to 2015. The Veteran’s service treatment records (STRs) do not reflect complaints of or a diagnosis of knee pain in service. His medical treatment records reflect that he has a diagnosis of osteoarthritis in both knees. X-ray imaging dated July 2018 show positive mild patella enthesopathy and minimal patellofemoral degenerative changes. In a July 2015 medical note, the Veteran reported experiencing acute pain to his right knee due to a fall three weeks prior during which he hit his knee on the cement. In an August 2018 Physical Therapy note, the Veteran complained of right knee pain with an “insidious onset 3-4 years ago.” The Veteran reported pain in regions of lateral and inferior right patella, with intermittent “clicking” when walking and going up and down stairs. However, the Veteran reported in July 2018 that he had pain in his right knee for years preceding the fall. In a May 2016 Gulf War Outpatient note, the Veteran reported that he has had right knee pain since 2013. In a statement dated September 2019, the Veteran’s former shipmate, Mr. M.P., stated that the Veteran was an engine man and worked below the ship. He also stated that the Veteran had a hard time lifting and carrying supplies, and required help due to his knees and back. Mr. M.P. also reported that the Veteran would constantly complain about issues with his back and knees. He said that the Veteran would complain about how he couldn’t sleep due to his pain and sometimes would disappear for days because he was on sick leave. In an October 2019 statement, Mr. A.F., another one of the Veteran’s former shipmates, stated that he saw the Veteran running from physical training and he looked to be in pain. He reported that the Veteran complained of his back and knees hurting often and that he would struggle to sleep. The Board notes that the Veteran provided a July 2017 medical opinion from Dr. G.B. at the Oceanside Center of Neurology. At the time that the medical opinion was written, Dr. G.B. was treating the Veteran for osteoarthritis in both knees. The private examiner stated that a review of the Veteran’s medical records while on active duty shows the he initially injured his knees from carrying heavy supplies up and down ladders and jogging in full gear. He initially managed his knee pains with Motrin. However, over the years, the pain in his knees has progressively worsened further compromising his gait and mobility. The examiner stated that the pain in the Veteran’s knees is further aggravated by climbing stairs or squatting down and at times, his right knee will buckle resulting in falls. On examination, Dr. G.B. reported that the Veteran has a positive bilateral Anterior Drawer Test. An MRI of the right knee on February 2017 showed tricompartmental degenerative arthritic changes with a small joint effusion. Based on this information, Dr. G.B. opined that it is more likely than not that the Veteran’s knee disability developed while he was on active duty in the Navy. Although Dr. G.B. provided a positive nexus opinion regarding the etiology of the Veteran’s knee pain, the Board does not find his opinion adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The private examiner did not provide a rationale for his opinion and based his conclusion solely on the Veteran’s lay statements concerning the physical strains on his body as a result of military service. Also, the examiner did not consider all the evidence in the record when providing his medical opinion, such as the lack of complaints in STRs of knee pain in service, the late onset of the Veteran’s knee pain with the first reported complaint in 2013, the intervening fall on his knees in 2015, and the Veteran’s physically strenuous employment following service. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Board finds that the McLendon criteria have been satisfied. Specifically, there is competent evidence that the Veteran has a bilateral knee disability which may be associated with his active service, but there is insufficient competent medical evidence on file for the Board to make a decision on the claim. As such, remand for an examination is necessary. 2. Entitlement to service connection for a lower back disability is remanded. The Veteran reported that he injured his back in service carrying heavy supplies and equipment, and that his lower back has worsened and became aggravated from bending, walking, standing, twisting and lifting. In a statement dated November 2019, the Veteran said that he had to carry a lot of heavy tools, parts and other things while he was a diesel mechanic in service. He said that he spent a lot of time bent over working in tight spaces and had to crawl on his knees to make repairs. He also reported that his back started to hurt while doing his job. The Veteran’s records reflect that he served in the Persian Gulf from March 1991 to March 1992. He was part of a “clearing team for the harbor and was responsible for moving out all the tugboats that the Iraqi’s used to block the harbor. He also stated that he started to have constant back pain which continued to worsen when he got out of the service. He was unable to maintain a job as a pump man due to his back pain. He stated that he could no longer work due to pain associated with prolonged walking and standing. He said that he cannot do any lifting or lift his one-year old grandson due to the pain. According to the Veteran’s records, he was last employed as a mariner merchant pump man from 2004 to 2015. The Veteran’s service treatment records do not reflect complaints of or a diagnosis of back pain in service. However, as noted above, the Veteran provided statements from two of his former shipmates in the Navy who stated that they observed the Veteran complaining of back pain and noticed his absence from work because he had to go to sick call for the pain. During a December 2016 Physical Therapy re-evaluation, the Veteran was diagnosed with radiculopathy of the lumbosacral region. The Veteran reported that “he has noticed some left side back pain since yesterday and doesn’t know what [is] causing it.” His medical treatment records reflect that his earliest complaint of back pain was in April 2013. The Board notes that the Veteran provided a medical opinion dated July 2017 from Dr. G.B. at the Oceanside Center of Neurology. At the time that the medical opinion was written, Dr. G.B. was treating the Veteran for lumbosacral radiculopathy. On examination, Dr. G.B. reported that the Veteran had moderately severe pain and tension upon palpation of his lumbar paraspinals and a positive bilateral SLR test. MRI of the lumbar spine on February 2017 showed a disc protrusion resulting in moderate bilateral neural foraminal stenosis and some compression of the bilateral exiting L5 nerve roots and descending S1 nerve roots. Dr. G.B. also noted that a review of the Veteran’s medical records while on active duty shows that he initially developed lower back pain carrying heavy supplies and equipment, and that his back pain became progressively worse over the years with severe pain radiating down both his legs and compromising his gait and mobility. Based on this information, Dr. G.B. opined that it is more likely than not that the Veteran’s back disability developed while he was on active duty in the Navy. Although Dr. G.B. provided a positive nexus opinion regarding the etiology of the Veteran’s lower back pain, the Board does not find his opinion adequate. Barr, 21 Vet. App. at 311. The private examiner did not provide a rationale for his opinion and based his conclusion solely on the Veteran’s lay statements concerning the physical strains on his body as a result of military service. Also, the examiner did not consider all the evidence in the record when providing his medical opinion, such as the lack of complaints in STRs of lower back pain in service, the late onset of the Veteran’s lower back pain with the first reported complaint in 2013, and the Veteran’s physically strenuous employment following service. The Board finds that there is competent evidence that the Veteran has a lower back disability which may be associated with his active service, but there is insufficient competent medical evidence on file for the Board to make a decision on the claim. As such, remand for an examination is necessary. McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral knee disability. Following a complete review of the Veteran’s claims file, the examiner must opine whether the Veteran’s bilateral knee disability is at least as likely as not related to an in-service injury, event, or disease, including strain on his knees from carrying heavy supplies up and down ladders and jogging in full gear while in service. In providing the medical opinion, the examiner should also consider the following intervening factors that may have contributed to the Veteran’s knee disability: his employment as a mariner merchant pump man from 2004 to 2015, the late onset of his documented knee pain, and his fall on his right knee in July 2015. The examiner must provide a complete rationale for all findings. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his lower back disability. Following a complete review of the Veteran’s claims file, the examiner must opine whether the Veteran’s lower back disability is at least as likely as not related to an in-service injury, event, or disease, including carrying heavy supplies and equipment while in service. In providing the medical opinion, the examiner should also consider the following intervening factor that may have contributed to the Veteran’s knee disability: his employment as a mariner merchant pump man from 2004 to 2015 and the late onset of his documented lower back pain. The examiner must provide a complete rationale for all findings. 3. After completing the requested actions, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, 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.