Citation Nr: 20046908 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 19-34 838 DATE: July 14, 2020 ORDER Entitlement to service connection for a right lower leg/shin disability is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s current right lower leg/shin disability had its onset during active service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for a right lower leg/shin disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from April 1953 to April 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board notes that this matter was previously before the Board in February 2020, at which time the Board remanded the matter for additional development. The matter has now returned to the Board for further appellate consideration. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a right lower leg/shin disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a 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 disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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). 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 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. Here, the Veteran asserts that he currently has a right lower leg/shin disability that is related to an injury he sustained after a parachute jump in service where his shin area hit a 30-caliber weapon upon landing. See October 2018 claim application. As an initial matter, the Board finds that the Veteran has a current right lower leg/shin disability. In April 2018, the Federal Circuit Court issued a precedential decision which held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). Although the December 2018 VA examiner indicated that the Veteran did not have a diagnosis pertaining to his right lower leg, the Veteran competently reported that he experiences pain every day in his right lower leg that is worse on weight-bearing and impacts his ability to stand and walk. Indeed, the December 2018 VA examiner opined that the Veteran’s claimed condition impacted his ability to perform any type of occupational task, noting “[p]ain in the right leg with prolonged standing and walking.” Therefore, under Saunders, the Board finds that the Veteran has a current right lower leg/shin disability. Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran had an in-service injury after a parachute jump in 1954. The Veteran’s DD-214 reflects that he received a Parachutist Badge on May 28, 1954 when in the 82nd Airborne Division at Fort Bragg, North Carolina, and that he completed basic airborne training between April and May of 1954. The Veteran has consistently reported that he experienced an injury (involving a laceration and pain) to his right lower leg after a parachute jump while in the 82nd Airborne Division in 1954, and he is competent to report such observable symptoms. See October 2018 claim application; December 2018 VA examination report; May 2019 private treatment record; November 2019 VA Form 9; June 2020 Correspondence. Additionally, the December 2018 VA examiner noted the presence of a scar on the Veteran’s right lower leg on physical examination, which tends to corroborate the Veteran’s account of his injury. The Board has no reason to doubt the Veteran’s credibility and it affords great probative value to his statements, especially since his reports are consistent with the places, types, and circumstances of his service, as shown in his DD-214. Moreover, the Board notes that the Veteran’s service records are incomplete as they were destroyed in a fire. See September 2013 Formal Finding on Unavailability of Service Personnel Records. Therefore, the Board has a heightened obligation to consider the application benefit-of-the-doubt rule in this matter. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is a nexus between the Veteran’s in-service injury and his current right lower leg/shin disability. On review, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran’s right lower leg/shin disability had its onset in active service. First, the Board finds the March 2020 VA addendum opinion inadequate and affords it little to no probative value. In its February 2020 decision, the Board requested that a VA examiner provide an addendum opinion as to the following: (1) whether it is at least as likely as not that the Veteran’s disability had its onset during service in the 82nd Airborne Division, to include as a result of trauma to the Veteran’s leg from landing on a 30-caliber weapon after a parachute jump; and (2) whether the findings from a May 2019 private magnetic resonance image (MRI) report and the scar noted to be on the Veteran’s right lower leg during the December 2018 VA examination were at least as likely as not suggestive of trauma to the Veteran’s leg during service. The March 2020 VA examiner provided the following opinion, seemingly in response to both questions: “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness…While the Veteran reported in 2018 that he sustained a right leg injury during AD, there is [a] lack of evidence to support this statement. His separation examination is silent for right leg pain/injury. His post separation file is silent for right LE complaints until greater than 50 years post separation, making it unlikely his current diagnosis is secondary to an in[-]service event or injury. Review of medical literature does not support a soft tissue injury resulting in lack of symptoms until greater than 50 years after initial injury.” The Board finds the March 2020 VA addendum opinion inadequate for the same reason it found the December 2018 VA medical opinion inadequate in its February 2020 decision. Namely, the rationale provided is still incomplete in light of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which holds that a Veteran’s lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. The March 2020 VA examiner improperly disregarded the Veteran’s competent lay reports of pain in his right lower leg since service and relied on the absence of medical evidence to provide a negative etiology opinion, which also renders the opinion inadequate under Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the March 2020 VA examiner did not address whether the scar noted on the Veteran’s right lower leg during the December 2018 VA examination was at least as likely as not suggestive of trauma to his leg during service. For these reasons, the Board finds that the record lacks an adequate medical opinion regarding the etiology of the Veteran’s right lower leg/shin disability. Second, the Board finds highly probative the Veteran’s reports of pain in his right lower leg since his in-service injury. The Veteran is competent to report such observable symptoms, and he consistently reported in lay statements submitted in this appeal and in statements made to medical professionals that the pain in his right lower leg onset after the injury from the parachute jump in 1954 and has continued in the same location ever since. See October 2018 claim application; December 2018 VA examination report; May 2019 private treatment record; June 2020 Correspondence. Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Third, as discussed above, there is no adequate etiology opinion of record regarding the Veteran’s right lower leg/shin disability. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran, and the lay adjudicator, to reach that conclusion based upon the overall factual picture such the observable nature of this disability, which has been manifested by continuous symptoms of pain since the in-service injury. See Kahana, 24 Vet. App. at 438. (Continued on the next page) Accordingly, after resolution of all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right lower leg/shin disability is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.