Citation Nr: 21000542 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 06-03 571A DATE: January 5, 2021 ORDER Entitlement to service connection for low back disability is granted. Entitlement to service connection for right knee disability is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s low back disability began during active service and has been continuous to the present. 2. The evidence is at least in equipoise as to whether the Veteran’s right knee disability began during active service and has been continuous to the present. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1978 until his honorable discharge in May 1983. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter involves an extensive procedural history that need not be detailed here. However, pertinent to this instant action, an April 2018 Board decision denied service connection for a low back disability and a right knee disability. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) contesting the Board’s April 2018 decision. In December 2019 the Court vacated the Board decision and remanded the issues in compliance with a Joint Motion for Remand (JMR). A July 2019 Board decision remanded the issues to the Agency of Original Jurisdiction (AOJ) in compliance with the JMR requirements. Subsequently, a VA back examination and a VA knee examination were conducted in February 2020, and the examiner provided new opinions on the etiology of the back and right knee disabilities. However, a July 2020 Board decision found there was not substantial compliance with the July 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board remanded the issues of entitlement to service connection for low back disability and right knee disability to the AOJ for addendum opinions. A review of the claims file shows there has been substantial compliance with the Board’s remand directives. Stegall, 11 Vet. App. 268. The case has been returned to the Board for further consideration. Service Connection Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In this case, “arthritis”, is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 Veteran. 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; Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for low back disability is granted. The Veteran contends his current low back disability had its onset during military service, and he has continuously experienced relevant symptoms since that time. He asserts he fell backward onto a desk and hurt his tailbone/lumbar spine in service. See May 2005 notice of disagreement. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a low back disability, diagnosed as residual injury to the tailbone, lumbar disk disease, degenerative disc disease lumbar spine, and degenerative arthritis of the lumbar spine. See, e.g., August 1993 VA examination, April 2011 VA examination, July 2011 VA examination, and May 2016 VA examination. Turning to the second element of service connection, an in-service incurrence, the Board finds this element is also met. The Veteran’s service treatment records (STRs) show in November 1978 the Veteran was treated for low back pain due to an injury. He was referred for x-rays, which were negative, and for physical therapy. Accordingly, the Board finds the second element of service connection has also been met. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of low back disability in service and since service separation. Regarding the Veteran’s assertions he has experienced low back disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In support of his claim, the Veteran submitted a statement from J.R., his aunt. J.R. stated the Veteran visited her in Chicago from June to July 1983. J.R. recalled the Veteran experiencing pain from his knee and tailbone; she gave him Tylenol three to four times a day. J.R. stated, the Veteran told her his pain was due to an injury in service. See August 2005 Correspondence. Turning to the medical opinions of record regarding the etiology of the Veteran’s low back disability, the Veteran underwent a VA spine examination in April 2011. The examiner provided a negative nexus opinion stating, based on the fact the Veteran has arthritis conditions over his spine already, this is not likely related to one incidence but rather a natural age progression. In the examiner’s July 2011 addendum opinion, he stated any relationship of current symptoms of the back to his remote [in-service] injury is purely speculative. In a December 2012 addendum opinion, the examiner stated the evidence shows other injuries after service to the Veteran’s back with arthritis; it is less likely that his back condition is related to the complaints in service but rather natural age progression. The parties to the December 2013 JMR agreed that the December 2012 addendum is inadequate as it provides no rationale and appears confusing. Upon readjudication, the Board, in an October 2014 decision, remanded the claim for an examination with medical opinion. Pursuant to that remand order, a VA back examination was conducted in May 2016. The examiner noted the Veteran’s reports of chronic low back pain which began in service and had worsened over the years. The examiner provided a negative nexus opinion stating it is less likely as not that the current low back condition is related to remote [in-service] injury, but rather natural age progression. In November 2016, a private medical opinion competed by Dr. M.B. was submitted. This opinion was extensive and included citation to various evidence, including medical literature. Essentially, the private opinion indicated that the Veteran’s low back disability was attributed to the Veteran’s military service. Dr. M.B. discussed the Veteran’s 1993 work-related injury to the lumbar spine area. Dr. M.B. stated this acute injury would make it very difficult to evaluate the difference between a new injury or an exacerbation of an old injury. Dr. M.B. also discussed the Veteran’s additional 1998 work-related injury. Dr. M.B. stated the continued trend of lumbar spine injuries with difficulty flexing his spine makes it more likely than not that the Veteran’s original injury is directly related and continuing to worsen in severity. Dr. M.B. noted the Veteran’s 2004 x-rays which revealed osteoarthritis. Dr. M.B. stated osteoarthritis which develops at a location that has previous trauma is more likely than not to have a causal relation. Dr. M.B. noted the progression of trauma to the development of osteoarthritis can take years and decades to occur and would be consistent with the Veteran’s medical records. Dr. M.B. added, the current condition that the Veteran is currently living with will likely cause frequent exacerbations of low back pain for the remainder of his life. Dr. M.B. concluded, “it is my opinion that it is as likely as not that the Veteran’s spine disability is directly related to his active duty injury in 1978.” In the May 2017 remand decision, the Board found the May 2016 back examination contained an opinion, but the examiner offered no rationale. Furthermore, the Veteran submitted a private medical statement that concluded the current low back disability was related to an in-service injury. Therefore, the Board ordered a new examination, which occurred in January 2018. The January 2018 examiner provided a negative nexus opinion. In support of this opinion, the examiner stated the Veteran’s post-service records are silent for any complaint of back pain until 1993. The parties to the December 2018 JMR agreed the January 2018 VA examiner’s opinion was inadequate because the examiner did not comment on the November 2016 private medical opinion as part of her opinion and supporting rationale. Stegall, 11 Vet. App. at 271. Thus, the claim was remanded back to the Board to obtain an opinion that addressed the November 2016 private medical opinion. Stefl, 21 Vet. App. at 123. Upon readjudication, the Board, in a July 2019, remanded the claim for an examination with medical opinion. In August 2019, the Veteran submitted a statement explaining after discharge from the military in 1983 he took Tylenol for pain and aspirin for aches. He stated, this continued until he finally went to the VA medical center for help in 1993. See August 2019 Correspondence. Pursuant to the July 2019 remand order, a VA back examination was conducted in February 2020. The Veteran reported a history of chronic low back pain starting about twenty years ago. The examiner opined because the Veteran complains of chronic low back pain that started about twenty years ago, his low back disability is less likely as not caused by or a result of service. Of significance, the examiner remarked although a review of the Veteran’s file was completed it is certainly possible relevant information was not seen and therefore not considered in the requested opinion. In its most recent July 2020 remand, the Board stated there has not been substantial compliance with the prior remand directives because the March 2020 examiner “basically copied the rationales of the January 2018 examiner” and did not follow the Board’s July 2109 remand directives as well as the JMR requirements. Thus, the Board ordered an addendum opinion regarding the nature and etiology of the Veteran’s low back disability. Another VA examination was performed in July 2020. The examiner stated there was no agreement with the November 2016 private opinion or the January 2018 VA opinion. Regarding the November 2016 opinion, the examiner stated the Veteran was asymptomatic and his spine physical [separation] examination was normal and if indeed the Veteran had this condition of “an early, undiagnosed annular tear of discs” he would have still been symptomatic throughout service post injury. The examiner continued, there is no objective continuity of care for this Veteran’s claimed condition from 1983 to 1992. The examiner noted the Veteran’s post service back injuries and concluded there is no objective medical evidence the Veteran’s current back condition began during service or was otherwise caused by his military service. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Upon review, and resolving any reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s low back disability is related to his active service. See 38 C.F.R. § 3.102. As noted, the December 2012 addendum opinion and January 2018 VA medical opinion were found to be inadequate by the Court. Additionally, although the July 2020 VA examiner found the Veteran’s low back disability unrelated to service, the Board finds this opinion to be of diminished probative value. The July 2020 examiner’s opinion provided only limited rationale. Second, the examiner failed to consider all the evidence of record. The examiner failed to consider the competent and credible evidence of the Veteran’s reports of the onset of his low back disability symptoms in service, and the continuation of those symptoms in the years since. Furthermore, the examiner did not consider the competent and credible statement provided by J.R. Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran’s statements that he injured his low back in service and continued to experience low back disability symptoms until his diagnosis. As to the issue of nexus, the Board finds the November 2016 private medical opinion from Dr. M.B. and the Veteran’s statements regarding his in-service injury and resulting low back disability symptoms since service separation, to be probative. The private medical evidence, at the very least, places the evidence in equipoise as to whether the Veteran’s low back disability began during his military service. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his low back disability and finds that he has done so. While there is no evidence in the record that he sought medical treatment for low back disability for almost ten years after service separation, this fact alone is not determinative of the outcome of the case. The Veteran’s statements are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. at 469-70. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. 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 at 1377. The Board notes symptoms of low back disability are capable of lay observation. The Veteran has been consistent in his description of the details regarding the onset and symptomatology of his low back disability. The Veteran has continuously asserted he has experienced low back disability symptoms since military service including chronic pain. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Therefore, entitlement to service connection for the Veteran’s low back disability is warranted. 2. Entitlement to service connection for right knee disability is granted. The Veteran contends his current right knee disability has its onset during military service, and he has continuously experienced relevant symptoms since that time. He asserts he fell forward, twisting and injuring his right knee. See May 2005 Notice of Disagreement. In the alternative, his representative contends the Veteran’s right knee disability is secondary to his low back disability. See June 2012 Written Brief Presentation. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a right knee disability, diagnosed as right knee strain and right knee degenerative arthritis. See, e.g., April 2011 VA examination, and January 2018 VA examination. Turning to the second element of service connection, an in-service incurrence, the Board finds this element is also met. The Veteran’s STRs show he was seen in November 1978 for right knee pain; assessment was “not improved.” Further therapy and strengthening were recommended. Accordingly, the Board finds the second element of service connection has also been met. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of right knee disability in service and since service separation. Regarding the Veteran’s assertions he has experienced right knee disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles, 16 Vet. App. 370; see also Caluza, 7 Vet. App. 498. In support of his claim, the Veteran submitted a statement from J.R., his aunt. J.R. stated the Veteran visited her in Chicago from June to July 1983. J.R. recalled the Veteran experiencing pain from his knee and tailbone; she gave him Tylenol three to four times a day. J.R. stated, the Veteran stated his pain was due to an injury in service. See August 2005 Correspondence. Turning to the medical opinions of record regarding the etiology of the Veteran’s right knee disability, the Veteran underwent a VA joints examination in April 2011. The examiner provided a negative nexus opinion stating, any relationship of current symptoms to service would be speculative. In the examiner’s July 2011 addendum opinion, he stated any relationship of his current knee symptoms to his remote [in-service] injury is purely speculative. In a December 2012 addendum opinion, the examiner stated it is less likely that his knee complaints are related to the complaints in service as his x-rays are still normal, and more likely natural age progression. The parties to the December 2013 JMR agreed the December 2012 addendum is inadequate as it provides no rationale. See Stegall, 11 Vet. App. at 271. Thus, the claim was remanded back to the Board for an addendum or new examination. Upon readjudication, the Board, in October 2014, remanded the claim for an examination with medical opinion. Pursuant to that remand, a VA knee examination was conducted in May 2016. The examiner noted the Veteran’s remote knee strain (1978) and ongoing right knee pain. The examiner provided a negative nexus opinion stating it is less likely as not that the current right knee condition is related to one remote [in-service] injury, but rather natural age progression. In the May 2017 remand decision, the Board found the May 2016 knee examination contained an opinion, but the examiner offered no rationale. Therefore, the Board ordered a new examination, which occurred in January 2018. The January 2018 examiner provided a negative nexus opinion. In support of this opinion, the examiner stated the Veteran’s STRs are silent for multiple visits for right knee pain and post-service records are silent for any complaints of right knee pain until December 2004. The parties to the December 2018 JMR agreed the January 2018 VA examiner’s opinion was inadequate because although the examiner noted several service and post-service medical records as part of her rationale, the rationale was inadequate because the examiner did not provide an explanation linking the medical records to her conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, the claim was remanded back to the Board to obtain an opinion as to the etiology of the Veteran’s right knee disability. Upon readjudication, the Board, in July 2019, remanded the claim for an examination with medical opinion. In August 2019, the Veteran submitted a statement explaining after discharge from the military in 1983 he took Tylenol for pain and aspirin for aches. He stated, this continued until he finally went to the VA medical center for help in 1993. See August 2019 Correspondence. Pursuant to the July 2019 remand order, a VA knee examination was conducted in February 2020. The examiner provided a diagnosis of right knee degenerative arthritis. The examiner opined the Veteran’s degenerative arthritis is more likely than not related to normal age progression. In support of this opinion, the examiner stated the Veteran has degenerative arthritis of multiple locations of the body. Furthermore, the examiner stated there is no objective continuity of care from time of service separation. Of significance, the examiner remarked although a review of the Veteran’s file was completed it is certainly possible relevant information was not seen and therefore not considered in the requested opinion. In its most recent July 2020 remand, the Board stated there has not been substantial compliance with the prior remand directives because the March 2020 examiner did not follow the Board’s July 2109 remand directives as well as the JMR requirements. Thus, the Board ordered an addendum opinion regarding the nature and etiology of the Veteran’s right knee disability. Another VA examination was performed in July 2020. The examiner stated the STRs are silent for multiple visits for right knee pain and post service records are silent for any complaints of right knee pain until December 2004. The examiner stated there is no objective continuity of care for the right knee condition from 1978 until 2004. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean, 13 Vet. App. at 448-49. Although the July 2020 examiner found the Veteran’s right knee disability unrelated to service, the Board finds this opinion to be of diminished probative value. The examiner failed to consider the competent and credible evidence of the Veteran’s reports of the onset of his right knee disability symptoms in service, and the continuation of those symptoms in the years since. Furthermore, the examiner did not consider the competent and credible statement provided by J.R. Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran’s statements that he injured his right knee in service and continued to experience right knee disability symptoms until his diagnosis. Turning to the question of whether these is a nexus, or link between the current diagnosed disability and service, the evidence is at least in equipoise as to whether the Veteran’s right knee disability had its onset in service. Although there is no medical nexus opinion of record linking the Veteran’s current diagnosis of right knee disability to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his right knee disability and finds that he has done so. While there is no evidence in the record that he sought medical treatment for right knee disability for almost twenty years after service separation, this fact along is not determinative to the outcome of the case. The Veteran’s statements regarding his in-service injury and resulting right knee disability symptoms since service separation are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. at 469-70. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. 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, 21 Vet. App. 303. 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 at 1377. The Board notes symptoms of right knee disability are capable of lay observation. The Veteran has been consistent in his description of the details regarding the onset and symptomatology of his right knee disability. The Veteran has continuously asserted he has experienced right knee disability symptoms since military service including chronic pain. The evidence reflects the Veteran experienced right knee disability symptoms in service and there have been continuous symptoms since service separation. The Veteran has been diagnosed as having right knee disability. When weighing the evidence of record, the Board finds at most the evidence for and against the Veteran’s claim is in relative equipoise. Resolving doubt in the Veteran’s favor, the Board concludes competent medical evidence diagnosing the Veteran with right knee disability, as well as the competent and credible lay statements regarding in-service and post-service symptoms, all support a finding the Veteran’s right knee disability began in service and has persisted since that time. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Wise, 26 Vet. App. 517, 531 (2014). Therefore, entitlement to service connection for the Veteran’s right knee disability is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.