Citation Nr: 21061885 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-25 035 DATE: October 5, 2021 ORDER Entitlement to service connection for a left knee disorder, diagnosed as degenerative joint disease (DJD) and anterior cruciate ligament tear, is granted. Entitlement to service connection for DJD of the right knee is granted. REMANDED Entitlement to service connection for degenerative changes of the lumbar spine is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his left knee disability had its onset in service. 2. Resolving reasonable doubt in favor of the Veteran, his right knee disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a left knee disorder, diagnosed as DJD and anterior cruciate ligament tear, have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for establishing service connection for DJD of the right knee have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1976 to May 1980 and from July 1980 to May 1986. This matter comes to the Board of Veterans' Appeals (Board) from an August 2015 and a May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran later testified at a hearing before the undersigned Veterans Law Judge in February 2019; a transcript of that hearing is associated with the claims file. In July 2019, the Board remanded these claims for additional development. Service Connection Service connection may be granted for 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 disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). 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). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. 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, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left knee disorder 2. Entitlement to service connection for a right knee disorder The Veteran and his representative assert that the Veteran is entitled to service connection for his bilateral knee disability as it originated during his active duty service. The evidence reflects that the Veteran has been diagnosed with degenerative joint disease of the bilateral knees, as noted in a March 2016 treatment record. The Veteran was also diagnosed with left knee anterior cruciate ligament tear, degenerative arthritis, and chondromalacia, as noted in a VA examination from January 2020. Also, bilateral knee DJD was also confirmed by a private physician in March 2021. During the January 2020 VA examination, the Veteran reported that he may not have reported to sick call, however he has experienced knee issues since service. Accordingly, the first element necessary to establish service connection for a bilateral knee disability has been demonstrated. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records (STRs) are devoid of a diagnosis of bilateral knee disabilities. However, the absence of documented treatment in service is not considered fatal to a service connection claim. A veteran or other lay person is considered competent to report that which he perceives through his symptoms, which in this case, would be pain in his bilateral ankles. Layno v. Brown, 6 Vet. App. 465 (1994). In the Veteran's June 2016 Notice of Disagreement, he asserted that he has had bilateral knee pain since active duty service, and has just dealt with the pain, explaining that he injured his knees due to physical trauma while serving in the Coast Guard. The Veteran also submitted a lay statement from his wife's uncle who asserted that the Veteran injured his lower back and bilateral knees during active duty service, and it was observable due to mobility issues. Additionally, during the February 2019 Board testimony, while the Veteran does not point to a specific injury, he states that his bilateral knee pain began during his active duty service. The Veteran is competent to report his symptoms, as a layman; however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). Giving the Veteran the benefit of the doubt, the Board finds that his statements regarding in-service bilateral knee pain are sufficient to satisfy the second element necessary for his service connection claim. The only remaining issue to resolve these service connection claims is the nexus, the link between the in-service incident or injury and the current disability. The Board notes that the evidence regarding this element is mixed. The January 2020 VA examiner determined that the Veteran's left disability was not due to service because it was not diagnosed during his active duty service. The January 2020 medical opinion of record entirely omits discussion of the Veteran's lay statements and assertions. Therefore, the Board finds that this medical opinion has minimal probative value. The Veteran submitted a physician's opinion by his treating physician that notes review of the Veteran's service and medical records. The treating physician opined that he unequivocally believed that the Veteran's bilateral knee disabilities began during and were accelerated by his duties in the U.S. Coast Guard. The Board finds that this medical opinion is highly probative because it is based on a thorough review of the record, it contains details of the Veteran's history and in-service experiences, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for bilateral knee disabilities, diagnosed as DJD and anterior cruciate ligament tear of the left knee and DJD of the right knee, is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for degenerative changes of the lumbar spine is remanded. The Board cannot make a fully informed decision regarding these claims on appeal as the medical opinions obtained in response to the July 2019 and September 2020 Board remands are inadequate for adjudicative purposes. The Veteran alleges that his current back disability was caused by his active duty service. According to the Veteran's sworn testimony during his February 2019 Board hearing the Veteran and his representative assert that his back disability has progressively gotten worse since service. Pursuant to the July 2019 Board remand, the Veteran was afforded a VA examination in January 2020. During the January 2020 VA lumbar spine examination, the Veteran asserted that his disability originated from an in-service injury and that he was seen in the sick bay for the injury. The Veteran also stated that he did not seek medical care for his back until about 15 years after his active duty service. However, the examiner disregarded the Veteran's statement and instead provided a conclusory statement that the Veteran's lumbar spine disability was less likely than not related to his active duty service, since the medical records do not show a continuity of care after service. In September 2020, the Board determined that the examiner disregarded the Veteran's lay assertions, as the Veteran's statements during this examination are consistent with his February 2019 Board testimony, in which he states that his lumbar spine pain began during his active duty service. The Board found that the January 2020 VA opinion was inadequate for adjudication purposes and that an additional VA opinion that addresses the Veteran's contentions needed to be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Pursuant to the September 2020 Board remand, VA obtained another medical opinion in October 2020. The October 2020 VA examiner determined that the Veteran's lumbar spine disability was not due to service because it was not diagnosed until 2016, and there were no complaints of back pain during service. The October 2020 medical opinion of record entirely omits discussions of the Veteran's lay statements and assertions. The Board finds the October 2020 VA opinion is inadequate for adjudication purposes and that an additional VA opinion that address the Veteran's contentions should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Therefore, yet another remand is necessary in order to obtain adequate medical opinion that complies with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion to help determine and explain whether the Veteran's back disability are related to his claimed in-service back pain or a service-connected disability. The electronic claims file must be made accessible to the examiner in conjunction with the examination. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. All diagnostic testing deemed to be necessary by the examiner should be accomplished. Following complete review of the record (and examination, if conducted), the examiner should answer the following: a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability was caused by the Veteran's service. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability was caused by, or aggravated by, one of the Veteran's service-connected disabilities. The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran's recollection is affirmatively contradicted by the medical evidence. A complete rationale must be provided for all opinions. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why and what, if any, additional evidence would permit such an opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.