Citation Nr: 21002974 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-03 094 DATE: January 19, 2021 ORDER Service connection for a bilateral lower extremity disorder manifested by knee and calf pain is granted. Service connection for back disorder is denied.   FINDINGS OF FACT 1. The Veteran’s bilateral lower extremity disorder, which is manifested by knee and calf pain, had its onset during service. 2. The Veteran’s back disorder was neither aggravated nor related to service. CONCLUSIONS OF LAW 1. The criteria for service connection of a bilateral lower extremity disorder, manifested by knee and calf pain, have been met. 38 U.S.C. §§ 1131, 5107; 38C.F.R. §§3.102, 3.303. 2. The criteria for service connection of a back disorder have not been met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38C.F.R. §§3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1980 to April 1984. The case is on appeal from December 2011 and November 2013 rating decisions. In November 2018, the Veteran testified at a Board hearing. The case was last before the Board in June 2019. At that time, the Board reopened the claim of service connection for a back disorder, reopened the claim of service connection for a right lower extremity disorder, denied service connection for a dental disorder, and denied an earlier effective date prior to September 3, 2010 for the award of service connection for residuals of a crush injury to the right ring finger. The Board also remanded the claims of service connection for a back disorder and a bilateral lower extremity disorder, to include shin splints, for further development. 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). Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In addition, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for bilateral lower extremity disorder, to include bilateral shin splints. The Veteran seeks service connection for shin splints. He maintains that he developed them as a result of a five-mile run during service, that he was treated for in service, and that he has continued to experience the same symptoms ever since. Service treatment records (STRs) include a May 1983 notation for right leg/knee pain brought on by a 5-mile run that occurred a month and a half earlier. The Veteran self-treated with Bengay and hot towels. The note reflects right knee pain that shifts up the leg, particularly the femur muscle, making it difficult for him to run or walk long distances. Medical records include March and May 2012 notations for chronic pain in his knees and legs that continues to get worse. In September 2014, the Veteran reported pain in his left lower leg for the past 5-6 week, with pain in the back of his calf that resolves in the morning. He described pain in his knees as a constant throbbing, 10 out of 10. Notably, also in September 2014, he denied pain in his left calf with palpation and, in February 2015, the Veteran denied any trauma or injury to his knees. A note in February 2016 reflects bilateral shin and knee pain that gets better with pain medication. In September 2016, the Veteran stated his leg pain is not well controlled and that he is getting by with medication. A note in August 2018 provides the pain in his knees and toes was getting worse, as it is continuous and throbbing. As of July 2019, the Veteran noted he takes Tramadol and Gabapentin as prescribed, but that he still experiences tingling and numbness of his feet. At the November 2018 Board hearing, the Veteran reported he currently takes pain pills and requires a cane for ambulation. The Veteran was afforded a VA examination in November 2014. During the examination, the Veteran reported functional impairment, as he awakes to both his knees swollen and they cause increasing pain without having participated in any aggravating activities. The examiner noted pain on flexion, but there was no evidence of pain on weight bearing or objective evidence of localized tenderness or pain on palpation of joint or associated soft tissue; no pain noted bilaterally with repetitive use over time; and, no reduction in muscle strength and no presence of muscle atrophy or ankylosis. However, the Veteran reported flare-ups of both knees several times a month, resulting in moderately severe pain and his need to elevate and ice them for hours. He also reported regular use of a cane. The examiner reported the Veteran does not now have and has never had shin splints or any other current condition associated with a right knee condition. Based upon this information, the examiner opined the Veteran’s knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner provided the STRs indicate acute, transitory treatment in May 1983 of right knee pain, but noted no further treatment. As such, there was no evidence of a nexus between the acute injury and current disability. Pursuant to the Board’s remand, another VA examination was afforded the Veteran in January 2020. The Veteran reported he began experiencing shin splints in 1981 and that he would go see doctors, but no one treated him for this. He provided that he is currently experiencing left shin pain, but nothing with the right shin. Additionally, it hurts to walk or stand. He reflected that casts were placed on his left leg from the hip to the ankle for reoccurring shin splints in 1981. He has knee pain from running during service, and now has constant left leg and knee pain, for which he wears a knee brace. The examiner provided that the Veteran was diagnosed with shin splints in the 1980s, but they were noted as resolved. The examiner noted pain on the examination, but provided it does not result in or cause functional loss. There was also no evidence of pain on weight bearing or after repetitive use over time. The examiner noted the Veteran currently has pain in his shins, but there was no limitation of range of motion; further, the examiner provided these are subjective complaints and there is no objective finding. Based upon this, the examiner opined that any identified right or left leg disorder, to include shin splints, was less likely than not incurred in or caused by in-service injury, event, or illness. As rationale, the examiner provided that while the Veteran was treated for shin splints in service and currently has complaints thereof, but these are subjective complaints. As such, there is no diagnostic evidence of shin pain. Further, shin splints are typically acute and transitory and associated with PE. The examiner finally provided that the Veteran’s current shin pain is not related to the resolved shin splints in service that were treated acutely. After careful review of the evidence, and despite the negative VA opinions, the Board determines the Veteran has a current bilateral lower extremity condition that had its onset during service. Throughout the appeal period, the Veteran has competently and credibly reported chronic knee pain, shin splints, and other symptoms. The Board observes that a “disability” for VA purposes includes a functional impairment, even in the absence of underlying pathology. See Saunders, 886 F.3d at 1356 (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment). The Board finds the evidence of record establishes that the Veteran has current bilateral lower extremity functional impairment sufficient to establish a current disability. The Veteran began receiving treatment for his lower extremities, including calf pain (shin splints), while in service. The Veteran credibly reports continuing to experience constant pain in his lower extremities following service. Post service, the Veteran began receiving benefits from the Social Security Administration (SSA). In its determination for benefits, the SSA noted an undated pain questionnaire indicating knee pain for the last 10 years, affecting his walking, standing, and bending. Thus, the Veteran has experienced bilateral lower extremity pain since at least 2000. Medical records also provided the Veteran experienced worsening knee pain, resulting in issues walking and requiring use of weight bearing aids, along with physical therapy. As a result, the Veteran has bilateral calf muscle pain, aggravated by walking. Therefore, in view of the precedential holding in Saunders, and when resolving reasonable doubt in the Veteran’s favor, the Board finds he was a current bilateral lower extremity disability characterized by knee pain and shin splints, and that such had its onset during service. See 38 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a bilateral lower extremity condition, manifested by knee and calf pain, is warranted. 2. Service connection for a back disorder. The Veteran contends his current arthritis and the DDD of the lumbar spine are related to service. More specifically, he maintains his back disorder is the result of a fall that took place while on active duty, from which he has continuously experienced pain. The Veteran’s April 1980 entrance examination notes a diagnosis of mild scoliosis, asymptomatic. Additionally, the April 1984 separation examination report mentions mild scoliosis, asymptomatic. Therefore, the Board finds the Veteran's pre-existing back disorder was sufficiently noted pursuant to 38 C.F.R. § 3.304(b). As a result, the presumption of soundness is inapplicable to this case. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Thus, 38 U.S.C. § 1153 applies, meaning that for service connection to be warranted, it must be shown that the pre-existing injury or disease was aggravated by the Veteran’s active service. The Veteran is seeking service connection for a back disability, to include arthritis and DDD of the lumbar spine. To this end, STRs reflect that in May 1980 he complained of pain in the middle of the back, resulting in an impression ruling out a muscle pull and being placed on light duty. Additional complaints of back pain are recorded in July 1981 and 1982. National Guard records reflect a diagnosis of rhomboid strain in January 1986 and a September 1987 note provides he complained of middle back pain, which he has complained of before; however, the note also reflected that he would be able to perform normal duties for an upcoming inactive duty training (INACDUTRA) weekend, except heavy lifting, strenuous exercise, and running. Medical records as recent as July 2020 demonstrate the Veteran continues to experience chronic low back pain. Notably, a February 2015 record reflects the Veteran denied any history of trauma or injury to the back, despite reporting some aggravation of low back pain. During the November 2018 Board hearing, the Veteran testified that his back pain had its onset during service, when he fell off a moving truck. He also testified that for the last 10-15 years, VA has issued him a TENS unit and he has continuously been given medication for back pain since service. After review of all the lay and medical evidence, the Board finds that the weight of evidence demonstrates that (1) the Veteran’s pre-existing scoliosis did not increase in severity during service and (2) the currently diagnosed DDD of the lumbar spine and arthritis did not have their onset during or are otherwise related to service. The Veteran was afforded a VA examination in October 2013. The examiner opined the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, STRs showed reports of back pain diagnosed as “rule out” muscle pull and muscle spasm all acute and transitory conditions, as evidenced on the separation examination as showing a history of back pain with no sequelae. During the examination, the Veteran reported experiencing constant lower back pain daily, along with flare-ups, even though not observed on examination. Additionally, there was no evidence of pain on weight-bearing or passive range of motion. In January 2020, the Veteran underwent his most recent VA examination, pursuant to the Board’s June 2019 remand. The examiner noted the Veteran was diagnosed with congenital scoliosis, degenerative joint disease (DJD), and DDD of the lumbar spine in 2013 and with an acute, transitory muscle strain in the 1980s. The examiner opined the Veteran’s scoliosis, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. As rationale, the examiner reported a muscle strain or fall would not impose disease or injury to his scoliosis, as there was no progression or sign of worsening post service. Further, DJD and DDD are not related to his scoliosis, which was mild during and post service, and remained such for decades post service. Additionally, the examiner provided scoliosis of the thoracic spine did not cause his lumbar spine DJD or DDD. As to whether the evidence showed a direct etiological relationship between any back disability that is not congenital and did not pre-exist service, the examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that his DDD and DJD were not present in service or within a year of discharge from service. In 1997, he only has x-rays showing mild congenital scoliosis, which was 13 years post service. Based on this, the examiner concluded the DDD and DJD started after that. The examiner provided that the DDD and DJD are due to the aging process as well as genetics, not a fall or muscle strain in service. A strained muscle is an acute and transitory condition that is soft tissue diagnosis, not leading to degeneration of disc or bone for DJD and DDD. Taken together, the STRs and January 2020 VA examiner’s opinion establish that the pre-existing scoliosis did not increase in disability during service. As such, the presumption of aggravation does not apply and service aggravation is not warranted for scoliosis. Moreover, the other back diagnoses did not have their onset during or are otherwise related to service. The Board finds the October 2013 and January 2020 VA examination reports and opinions both persuasive and adequate, as they are based on accurate medical history, provide an explanation that contains clear conclusions and supporting data, and demonstrate close review of the Veteran’s claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the examiner also used the phrase “beyond its natural progression,” which is typically used after a finding of an increase in severity, the Board reads the entire opinion as there was no increase in severity during service. In light of this evidence, the Board finds that the Veteran’s pre-existing scoliosis did not increase in severity such that the presumption of aggravation applies. While the Veteran believes his condition was aggravated by service, or, at the very least, was incurred in service, he is not competent to provide an opinion on this question. This issue is medically complex, as it requires knowledge of scoliosis, arthritis, and DDD, with special consideration of this Veteran’s case in the context of his service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence. (Continued on the next page)   For these reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and service connection for a back disorder is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.