Citation Nr: 21003883 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-01 358 DATE: January 25, 2021 ORDER Entitlement to service connection for degenerative joint disease of the right knee is granted. Entitlement to service connection for degenerative joint disease of the left knee is granted. Entitlement to service connection for degenerative joint disease of the lumbar spine is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s degenerative joint disease of the right knee is related to or caused by his active duty service. 2. The evidence is in equipoise as to whether the Veteran’s degenerative joint disease of the left knee is related to or caused by his active duty service. 3. The evidence is in equipoise as to whether the Veteran’s degenerative joint disease of the lumbar spine is related to or caused by his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the right knee 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 degenerative joint disease of the left knee have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for degenerative joint disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from July 1979 to November 1979, and from December 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These issues were previously addressed and subsequently remanded by the Board in an August 2019 decision. The requested development has been completed and the issues are before the Board for additional appellate consideration. Service Connection 1. Entitlement to service connection for degenerative joint disease of the right knee. 2. Entitlement to service connection for degenerative joint disease of the left knee. 3. Entitlement to service connection for degenerative joint disease of the lumbar spine. To promote efficiency, the issues of entitlement to service connection for bilateral knee and lumbar spine degenerative joint disease will be addressed together. In this post-remand case, the Veteran contends he is entitled to service connection for degenerative joint disease of the right and left knees and lumbar spine; specifically, as residuals after jumping off the back of a deuce and a half military vehicle. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In the August 2019 decision, the Board acknowledged evidence of a current disability for both knees and lumbar spine. A private medical note from May 2004 indicates the Veteran’s L1-L2 disc area demonstrated a central disc protrusion and he suffered from severe stenosis of the neural canal. Additionally, the examiner opined that he had a “chronic compression fracture deformity of L2 with 80% loss of the vertical height anteriorly.” The Veteran was afforded a VA examination in October 2011. First, the examiner diagnosed him with degenerative joint disorder of the knees. Second, the examiner diagnosed him with degenerative joint disease of the lumbar spine. In a June 2016 private medical examination assessment, the practitioner noted the Veteran experiences severe cervical lumbar stenosis and compression fracture. He also suggested possible neurosurgery. In April 2019, the Veteran was afforded a hearing before the Board. He testified that he had surgery on the left knee due to a torn meniscus and a right knee replacement due to the arthritis. The Board finds the Veteran competent and credible to discuss his symptoms and experiences. Furthermore, per the Board’s remand instructions, the Veteran was afforded additional VA examinations. He was afforded examinations in November 2020. First, VA examiner confirmed bilateral degenerative arthritis of the knees to include right knee residuals of a total arthroplasty/instability and left knee meniscus tear status-post arthroscopic surgery. Second, VA examiner diagnosed the Veteran with degenerative arthritis of the spine to include spinal stenosis, vertebral fracture and lumbar spine status-post discectomy residuals with radiculopathy involving the sciatic nerve. Therefore, given the evidence of a current disability, the Board finds adequate evidence satisfying the first element necessary for service connection. As it pertains to an in-service event or injury, the Veteran provided credible testimony during his hearing before the undersigned Veterans Law Judge that his disabilities are the result of jumping off a deuce and a half military vehicle. During the Veteran’s Board hearing, he testified that he was unloading groceries off the truck, jumped of the back, and injured both his knees and his back. He maintains that he reported his injury to his supervisors; however, they were shorthanded and could not afford to lose someone. The Veteran’s brother attended the hearing as a witness and supported the Veteran’s contentions. He also stated that, due to his injuries, the Veteran was unable to continue playing sports and participate in other activities. As provided for above, the Board finds the Veteran competent and credible to discuss his symptoms and experiences. Therefore, the Board finds adequate evidence of an in-service event or injury satisfying the second element necessary for service connection. With regard to the final element, a nexus, the Board finds the evidence to be in equipoise as to whether his bilateral knee and back degenerative arthritis was related to or caused by his in-service injury. The November 2020 VA examiner stated the Veteran’s bilateral knee degenerative arthritis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The examiner’s rationale is that the Veteran’s service treatment records (STRs) do not contain evidence of a right or left knee condition being treated. With regard to the lumbar spine, the examiner provided the same rationale. The Board finds the opinion to be of little or no probative value. The examiner failed to provide an opinion as to the nature and etiology of the Veteran’s current degenerative arthritis. Instead, the examiner relied on the lack of evidence in the STRs to support the negative nexus opinion. Lack of evidence in the STRs is an insufficient rationale to support a negative nexus opinion. The mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). Furthermore, the examiner failed to take into consideration the Veteran’s lay statements regarding continuity of symptoms. Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic disorder, like arthritis, when coupled with credible statements of continuity of symptoms, can substitute for competent medical nexus evidence. Therefore, giving the Veteran the benefit of the doubt, and given evidence of a current diagnosis of bilateral knee and lumbar spine degenerative arthritis and the Veteran’s credible testimony regarding his in-service injury and continuity of symptoms, the Board finds that entitlement to service connection for arthritis of the bilateral knees and lumbar spine is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.