Citation Nr: 20054089 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 17-09 425 DATE: August 14, 2020 ORDER Entitlement to service connection for spinal stenosis and intervertebral disc syndrome is granted. Entitlement to service connection for a right hip sprain is granted. Entitlement to service connection for a right knee strain is granted. Entitlement to service connection for a left knee strain is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his spinal stenosis and intervertebral disc syndrome is likely due to the impact of parachute jumps in service. 2. Resolving all doubt in favor of the Veteran, his right hip sprain is likely due to the impact of parachute jumps in service. 3. Resolving all doubt in favor of the Veteran, his right knee strain is likely due to the impact of parachute jumps in service. 4. Resolving all doubt in favor of the Veteran, his left knee strain is likely due to the impact of parachute jumps in service. CONCLUSIONS OF LAW 1. The criteria for service connection for spinal stenosis and intervertebral disc syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for a right hip sprain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for a left knee strain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 4. The criteria for service connection for a right knee strain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to April 1997. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a September 2019 hearing. The transcript of the hearing is of record. A September 2019 Board decision remanded the issues on appeal for further development. A May 2020 rating decision granted service connection for a migraine headache disability. As that constituted a complete grant of the benefit sought on appeal, the issue is not before the Board. The Board notes that the Veteran filed a June 2020 Request for Higher Level Review regarding an increased rating for his migraine headache disability. As the appeal was filed in the modernized appeal system, it is not part of the current legacy appeal and will not be addressed herein. Service Connection 1. Entitlement to service connection for low back pain, acute muscle spasms, spondylolisthesis 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left knee disability 4. Entitlement to service connection for a right knee disability The Veteran contends that his low back, right hip and bilateral knee disabilities are due to rough landings and impacts as a paratrooper in service. For the reasons that follow, the Board finds that service connection is warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, “the preponderance of the evidence must be against the claim.” Id. at 54. The Veteran’s DD-214 documents receipt of the parachutist badge. Service treatment records show complaints of low back pain in March 1996 and October 1996, with diagnoses of low back pain and muscle spasms. Service treatment records are silent for right hip and bilateral knee complaints. An April 2015 VA examination found that the lumbar spine disability was not due to service as there was no evidence of a disability until 2007. However, as noted in the September 2019 Board remand, there is no indication in that the examiner considered the Veteran’s reports of pain since service. As the opinion was based on an incomplete medical record, it is inadequate for review, and the Board assigns it no probative weight. VA examinations of the lumbar spine, right hip and bilateral knees were provided in January 2020 and the examiner diagnosed spinal stenosis, intervertebral disc syndrome, right hip sprain, and bilateral knee strain. The examiner noted the Veteran’s reports of parachute jumps and that his back, hip and knee pain began in service. In each case, the examiner diagnosed a current disability but found that it was not likely due to service. As a rationale, for each disability the examiner stated that he could not localize chronic pain or a specific knee injury in service, and while the Veteran “might” have had microtrauma from parachute jumps, “as is the case with any paratrooper” there was no evidence in the VA chart. The Board finds the etiological opinions inadequate as the examiner inappropriately found that competent lay evidence was not credible solely due to the absence of contemporaneous medical evidence. The Board particularly notes that the examiner specifically noted that parachute jumps may have caused trauma to the Veteran’s joints and indicated that such injury, is common among paratroopers, but disregarded the Veteran’s reports due to a lack of corroborating evidence in the treatment records. The nexus opinions are therefore inadequate, and the Board assigns them no probative weight. See Buchanan, 451 F.3d at 1336–37. There is no evidence that the January 2020 examiner was not competent, however, and as the reports were based on an in-person examination and the examiner’s observations, the Board assigns the diagnosis portion of the January 2020 examinations significant probative weight. At the September 2019 Board hearing, the Veteran reported that he did over 30 parachute jumps in service, had some rough landings, and that his back, right hip and knees hurt from those bad landings. He reported that he did not seek treatment at the time as he did not want to jeopardize his pay, but that he had pain beginning in service and continuing after service. The Board notes that the Veteran is competent to report lay observable symptoms such as pain and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him/her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Resolving all doubt in favor of the Veteran, the Board therefore finds that his lumbar spine, right hip and bilateral knee disabilities were caused by repeated trauma from parachute jumps in service. The January 2020 examination diagnosed current lumbar spine, right hip and bilateral knee disabilities. The record shows that the Veteran was a paratrooper. The Veteran has submitted competent and credible lay evidence that his symptoms began after rough landings and repeated jumps in service and continued after service. Significantly, the January 2020 VA examiner stated that the parachute jumps in service may have caused microtraumas to the Veteran’s joints and that such injuries are in fact common among paratroopers. The preponderance of the competent evidence therefore indicates that the Veteran’s lumbar spine, right hip and right and left knee disabilities are at least as likely as not due to parachute jumps in service. Service connection is therefore warranted. 38 C.F.R. §§ 3.102, 3.303. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.