Citation Nr: 21000992 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 20-04 492A DATE: January 6, 2021 ORDER Entitlement to service connection for a right knee condition is granted. Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for degenerative arthritis of the spine (claimed as back condition) is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s right knee condition began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The evidence is in equipoise as to whether the Veteran’s left knee condition began during active service, or is otherwise related to an in-service injury, event, or disease. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran’s back condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to service connection for a right knee condition is granted. 2. Entitlement to service connection for a left knee condition is granted. The Veteran through his representative asserts that he should be service connected for his bilateral knee condition. Specifically, the Veteran through his representative asserts that the Veteran has current back and bilateral knee disabilities which are the result of the Veteran’s participation in airborne jumps during active service, which have since interfered with the Veteran’s ability to walk, sit and bend. The Veteran’s representative asserts that the evidence of record supports that the Veteran’s bilateral knee injuries are related to service. See Third Party Correspondence, Received by the Board in November 2020. The Veteran asserts that during service he attended Parachute Rigger school and as part of the training he had to perform two jumps. The Veteran states that the landing was very rough on his body and noted that he remembered hitting the ground hard and being dragged along the ground because he could not control his canopy. The Veteran states that as a result of one of his jumps, he immediately started feeling intense pain in his knees and back, however, since going to sick bay was frowned upon, he tried to live and work with the pain throughout the duration of his service. The Veteran asserts that the pain was constantly present in his knee joints, particularly his left knee and due to the pain in his left knee, frequently had to favor his right knee. The Veteran further asserts that in May 1969 he sought treatment from an in-service doctor, but it did not help. The Veteran further asserts that he continued to feel pain in both knees and in his back, but just tried to deal with it on his own and used over the counter medication to ease the pain. Additionally, the Veteran asserts that the pain in his back and knees makes it difficult for him to sit in the car and cook, clean, and do yard work because he cannot stand long enough to complete these tasks. See Declaration of Veteran Received November 2020. The Veteran’s service treatment records include complaints related to bilateral knee pain during service. Specifically, a March 1969 treatment note states that the Veteran experienced pain in his knee joints. Another treatment note dated May 1969 states that the Veteran had chronic left knee strain. The Veteran’s December 1967 enlistment examination did not include any notations regarding bilateral knee issues and the musculoskeletal and lower extremities were clinically evaluated as normal. On the corresponding enlistment Report of Medical History, the Veteran did not indicate trick or locked knee. The Veteran’s April 1971 discharge examination did not include any notations regarding bilateral knee, lower extremities or musculoskeletal issues. The Veteran’s military personnel records state that the Veteran’s military occupation was aircrew, survival equipment airman apprentice. The Veteran’s military personnel records also indicate that the Veteran was stationed at the Naval Air Technical Training Center. The Veteran’s DD Form 214 states that the Veteran’s education and training completed included Parachute Rigger School Class A at NATTC, NAS from April 1969 to October 1969. The Veteran’s post service VA treatment records include multiple complaints of bilateral knee pain. Treatment notes dated February 2006, May 2007, July 2007, and March 2019 state that the Veteran complained of bilateral knee pain. A January 2006 treatment record and a March 2007 treatment note states that the Veteran experienced osteoarthritis and pain in the knees and both need replacement. A March 2007 and July 2007 treatment note states that the Veteran has crepitus in both knees. A July 2018 treatment record states that the Veteran has two prosthesis in his knees. A January 2019 record states that the Veteran has DJD of the knee. The Veteran was afforded a (DBQ) VA examination related to his bilateral knee disability in May 2017. The Veteran was diagnosed with status post bilateral total knee arthroplasty. The examiner noted that the Veteran experienced flare-ups in both knees. The right knee and left knee flare ups were both described as aching and swelling and restless. Additionally, the examiner noted that the Veteran reported functional loss to include his knees swelling every day, inflammation, discomfort and causing pain and aching. A VA etiological medical opinion dated May 2017 was also provided regarding the Veteran’s right knee condition. The examiner opined that the Veteran’s right knee condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. As rationale, the examiner stated that after review of the medical records provided there was no indication of treatment for complaints of right knee pain and at the time that the Veteran was discharged from the military in 1971 there was no documented chronic right knee condition. The examiner also noted that the Veteran subsequently underwent right knee replacement in 2009. It is further noted that a progress note dated April 2012 indicated s/p right TKA in June 2009. Additionally, the examiner stated that there are no records after 1971 which indicate ongoing knee complaints secondary to military service. The examiner also noted that a progress note dated May 2005 states he has a long history of bilateral knee pains. Moreover, the examiner noted that the Veteran is aware that this is also related to obesity. The examiner stated that the Veteran has a history of osteoarthritis and knee pains and will continue with Ibuprofen for now. Another VA etiological medical opinion dated May 2017 was provided to assess the Veteran’s left knee condition. The examiner opined that the Veteran’s left knee condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. As rationale, the examiner stated that while medical records do indicate treatment for left knee pain in 1969, there was no indication of continued knee complaints that were secondary to military service after that time. The examiner further stated that a progress note dated March 1969 states that the Veteran had pain in the left knee joint and chronic left knee strain pain over medial aspect. The examiner further stated that the Report of medical exam dated April 1971 stated that there were no indicated chronic conditions. Lastly, the examiner stated that while medical records do indicate that the Veteran underwent total knee replacement in 2016, there are no records which link this to knee complaints forty plus years later. VA obtained another medical opinion in August 2017. The examiner did not specify if this was for his right or left knee and his review was based upon a review of the Veteran’s records. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that a review of records shows that the Veteran was a parachute rigger from 1968 to 1971. The examiner further stated that the Veteran did not have a parachute badge and also noted that the separation examination did not note any chronic knee problems. The examiner also stated that medical literature states that posttraumatic arthritis is a form of arthritis that develops after an injury to the knee and meniscal tears and ligament injuries can cause instability and additional wear on the knee joint, which over time results in arthritis. The examiner did not cite to a specific medical journal or article when reporting this information. The examiner concluded that it was at least as likely as not that the ligament tears contributed to OA. The Veteran was afforded a private examination at Ellis Clinic in September 2018 to assess his bilateral knee condition. The examiner, Dr. JE opined that it is more likely than not that the Veteran’s bilateral knee injuries are a direct result of his jumps while serving in the U.S. Navy. The examiner reviewed the Veteran’s extensive medical history and noted that the Veteran worked in the aircraft survival unit making parachutes and he jumped with Navy trainers. The examiner noted that following all of his jumps the Veteran began having bilateral knee pain which worsened over the years and resulted in the Veteran having to have both knees replaced. Additionally, the examiner noted that the landing from the jumps caused twisting and turning in the Veteran’s knees wen he would land, causing sheering of the meniscus and causing increased inflammation in his joint. It is further noted that the increased inflammation caused osteophytes to form at a more rapid rate than normal causing wear and tear on the articular cartilage as well as the menisci in his knees, which eventually caused him to require a total knee arthroplasty in each knee. After a review of the record, the Board finds the evidence of record is in equipoise as to whether the Veteran’s bilateral knee disability is related to service. The Board accords little weight to the August 2017 VA medical opinion as the examiner did not specify which knee the examiner was evaluating and failed to provide a citation for the medical literature that he referenced in support of his opinion. The Board also acknowledges that the August 2017 VA examiner mentioned that the Veteran did not have a parachute badge and also noted that the separation examination did not note any chronic knee problems. The Board finds that whether the Veteran had a parachute badge or not, the record supports that the Veteran underwent parachute training as part of his Parachute Rigger School training as this is consistent with the circumstances of his service and such training. Moreover, the August 2017 VA examiner base his opinion, in part, on the absence of chronic knee problems, while the Veteran’s service treatment records establish that the Veteran complained of pain in his knee joints on several occasions. The Board is unable to place much weight on the May 2017 DBQ as this examination does not include an etiological opinion. With respect to the May 2017 VA etiological opinions that assessed the Veteran’s right and left knee and the private September 2018 opinion by Dr. JE respectively, the Board finds that the individuals who offered these opinions are competent medical professionals who considered the relevant facts and accepted medical principles and provided well-reasoned rationales for the opinions. Consequently, the conflicting May 2017 VA etiological opinions and the September 2018 opinion by Dr. JE are entitled to equal probative weight. The Board notes that the May 2017 examiners both noted that the Veteran did not have knee conditions in service despite the service treatment records that note the Veteran reported to the medical unit multiple times due to issues with his knees. Moreover, the Board acknowledges that with respect to the May 2017 examination of the left knee, the examiner stated that there are no records which link this to knee complaints forty plus years later. The Board notes, that while this may be true, the Board does not find this fact persuasive, especially, since the Veteran has indicated that he experienced ongoing pain, but did not always report it. The Board notes that, although the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is a factor that weighs against the Veteran’s claim, it is certainly not a dispositive factor. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the absence of medical evidence does not diminish the possibility of there being a medical nexus, particularly in this case where the Veteran’s service treatment records document complaints of knee issues, the Veteran has asserted continuity of his bilateral knee symptoms during service and consistently after service, and a private examiner Dr. JE has provided thorough medical rationale that supports that given the nature of the Veteran’s bilateral knee conditions coupled with his circumstances and duties in service, his in service injuries are at least as likely as not related to his current knee disabilities. The Board has acknowledged and considered the Veteran’s lay statements. The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to the Veteran’s complaints of in-service bilateral knee injury in service and after service, the Board finds credible his account of knee pain in service and after service as such injuries are consistent with the circumstances of his service, including several jumps with one that occurred during high winds, which in Parachute Rigger School. The Veteran’s assertions are supported by the evidence of record. The evidence need only be in equipoise to grant the benefit sought. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, there is competent medical evidence on the nexus question in favor of the claim and against the claim. The significant facts are not disputed, and when considering that same set of facts, medical professionals have come to contradictory conclusions. Accordingly, the Board finds that there is an approximate balance of positive and negative evidence. The benefit of the doubt rule applies and is resolved in the Veteran’s favor. Id. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a bilateral knee disorder is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for degenerative arthritis of the spine (claimed as back condition) is granted. The Veteran through his representative asserts that he should be service connected for his back condition. Specifically, the Veteran through his representative asserts that the Veteran has a current back disability which is the result of the Veteran participating in airborne jumps during active service, which have since interfered with the Veteran’s ability to walk, sit and bend. The Veteran’s representative asserts that the evidence of record supports that the Veteran’s back disability is related to service. See Third Party Correspondence, Received by the Board in November 2020. The Veteran asserts that during service he attended Parachute Rigger school and as part of the training he had to perform two jumps. The Veteran states that the landing was very rough on his body and noted that he remembered hitting the ground hard and being dragged along the ground because he could not control his canopy. The Veteran states that as a result of one of his jumps, he immediately started feeling intense pain in his knees and back, however, since going to sick bay was frowned upon, he tried to live and work with the pain throughout the duration of his service. The Veteran asserts that the pain was constantly present in his knee joints, particularly his left knee and due to the pain in his left knee, frequently had to favor his right knee. The Veteran further asserts that in May 1969 he sought treatment from an in-service doctor, but it did not help. The Veteran further asserts that he continued to feel pain in both knees and in his back, but just tried to deal with it on his own and used over the counter medication to ease the pain. Additionally, the Veteran asserts that the pain in his back and knees makes it difficult for him to sit in the car and cook, clean, and do yard work because he cannot stand long enough to complete these tasks. See Declaration of Veteran Received November 2020. The Veteran’s service treatment records are silent for any specific injuries, complaints, or symptoms related to a back condition. The Veteran’s entrance and separation examination do not include any complaints or injuries related to back issues. The Veteran’s military personnel records state that the Veteran’s military occupation was aircrew, survival equipment airman apprentice. The Veteran’s military personnel records also indicate that the Veteran was stationed at the Naval Air Technical Training Center. The Veteran’s DD Form 214 states that the Veteran’s education and training completed included Parachute Rigger School Class A at NATTC, NAS from April 1969 to October 1969. The Veteran’s post service treatment records include several complaints of back pain. A May 2007 treatment note, November 2018 treatment record, a January 2019 treatment record, and a March 2019 treatment record states that the Veteran experienced back pain. A November 2018 treatment note states that the Veteran suffers from different conditions including cervical radiculopathy, back pain. Another November 2018 treatment record states that the Veteran had arthralgia and low back pain. A separate November 2018 record states that the Veteran had reduced range of motion in his back. A January 2019 treatment record states that the Veteran had DJD of the lumbar spine. The Veteran was afforded a VA examination regarding his back disability in July 2017. The examiner opined that the Veteran’s back condition is less likely as not incurred in or caused by military service. As rational the examiner stated that it is acknowledged by the Veteran’s DD214 that he served from April 1968 to April 1971 and that as part of his education and training completed parachute school; however, the examiner stated that the record does not indicate that the Veteran ever had treatment records or documented reports and complaints of a back condition while in active duty service. Additionally, it was noted that the Veteran’s April 1971 separation examination is silent for any back condition when the Veteran left service. The examiner stated that there is a lack of significant medical evidence that the Veteran ever sustained a back condition due to service or events in service. Additionally, it is noted that there is a 36-year gap in records thereafter separation until May 2007 when the Veteran reported back pain. The examiner thus found that the Veteran has a current diagnosis of osteoarthritis of the spine that is not due to service and is instead likely due to age-related degenerative changes over time. The Veteran was afforded a private examination at Ellis Clinic in September 2018 to assess his back condition. The examiner, Dr. JE opined that it is more likely than not that the Veteran’s back condition is a direct result of his jumps while serving in the U.S. Navy. The examiner noted that the jumps caused significant compression to the entire spinal cord and the landing caused compression of the discs causing protusions. The examiner further noted that over time, the increased inflammation in the Veteran’s spine caused development of the osteophytes which put pressure on the nerves as they exit the spinal canal causing significant osteophytes, which put pressure on the nerves as they exit the spinal canal causing significant foraminal stenosis Additionally, it was noted that the jumps caused compression of the cervical and lumbar discs causing bulging and putting pressure on the spinal cord. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for a back disability is warranted. The evidence shows current treatment for a back disability, which the Veteran has reported began during service and has continued from that time to the present. The Board has acknowledged and considered the Veteran’s lay statements. The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to the Veteran’s complaints of in-service back injury in service and after service, the Board finds credible his account of knee pain in service and after service as such injuries are consistent with completing jumps during Parachute Rigger School training. The Veteran’s assertions are supported by the evidence of record. The Board acknowledges that the Veteran’s STRs are absent for complaints regarding back pain or injury in service; however, the Board finds that this fact alone is not dispositive, particular given that the Veteran underwent Parachute Rigger School training which included several jumps, including one in high winds. The Board acknowledges that the July 2017 VA examiner stated that it was less likely than not that the Veteran’s back disability began in, or is otherwise etiologically linked to, his active military service. The Board finds that although the medical examiner acknowledged that the Veteran’s DD214 indicates that as part of his education and training he completed parachute school, the examiner bases his rationale for the negative nexus opinion on the absence of documented reports and complaints of a back condition while in active duty service. The July 2017 VA examiner inappropriately relied on the absence of in-service reports of a back disability to support his opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Moreover, the July 2017 examiner stated that there is a 36-year gap in records thereafter separation until May 2007 when the Veteran reported back pain and thus incorrectly relied on the passage of time between service and a diagnosis to establish that there was not a medical nexus. The Board notes that, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder may be one of many factor that weighs against the Veteran’s claim, this is not a dispositive factor, and cannot be the sole basis for not finding a medical nexus. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the Board affords the July 2017 VA examination little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board assigns significant probative value to the September 2018 private opinion by Dr. JE. Moreover, the Board finds the report of Dr. JE to be credible. He thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). This medical opinion is based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. JE has the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of the Veteran’s back disorder. See Black v. Brown, 10 Vet. App. 279, 284 (1997). Given the Veteran’s credible contentions regarding his lay observable symptoms, his report of ongoing back pain in service and after service, the fact that the July 2017 VA examiner’s negative opinion is based solely on the absence of official documentation of a back disability until years after service, and the fact that the provide examination provided by Dr. JE was thorough and based on medical evidence and the totality of relevant information from the record, the Board affords the Veteran the benefit of the doubt and grants the claim for service connection for his back disability. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.