Citation Nr: 21062015 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-17 340 DATE: October 6, 2021 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to service connection for low back disability is denied. FINDING OF FACT Current right knee and low back disability is not related to events in service to include helicopter jumps. CONCLUSIONS OF LAW 1. Current right knee disability was not incurred or aggravated in service and is not presumed to be service-connected. 38 U.S.C. §§ 1110, 1112, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. Current low back disability was not incurred or aggravated in service, is not presumed to be service-connected, and was not proximately caused or aggravated by any service-connected disability. 38 U.S.C. §§ 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to March 1972. In February 2013 he sought service connection for disabilities of the right knee and low back. In a December 2013 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for disabilities of the right knee and low back. The Veteran appealed those denials to the Board of Veterans' Appeals (Board). In June 2019 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In an October 2019 decision, the Board denied service connection for disabilities of the right knee and low back. The Veteran appealed those denials to the United States Court of Appeals for Veterans Claims (Court). In June 2020 VA and the Veteran (the parties) submitted a Joint Motion for Remand (JMR), asking the Court to vacate the October 2019 Board decision and remand the issues to the Board for further proceedings. In June 2020 order, the Court granted the JMR. In November 2020 the Board remanded the right knee and low back issues to the RO for additional action. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The Court has indicated that 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). 1. Right knee disability The Veteran reports that on more than one occasion during service he jumped out of a hovering helicopter. He contends that, in landing from such jumps, he sustained right knee injury that became chronic right knee disability. He asserts that in Vietnam he served under combat conditions. The Veteran was born in 1951. He served in Vietnam from December 1970 to December 1971. His service personnel records (SPR) show that his main duty was repairing cryptology and other communications equipment. His service treatment records (STR) do not reflect any reports of right knee injury or problems, and he does not contend otherwise. At separation from service, in February 1972, the Veteran marked no for history of trick or locked knee. The examiner marked normal for the condition of his lower extremities. The Veteran has not identified records of medical treatment in the years immediately following his service. In March 1985, he had a VA Agent Orange Registry examination. He reported early degenerative joint disease of the right knee, addressed by surgery. In VA treatment in May 2007, the Veteran reported right knee pain, with a history of surgery in 2005. In an October 2008 statement, he wrote that at a fire base in Vietnam he was under constant artillery, mortar, and small arms fire for three or four days. He stated that several soldiers were killed or wounded. In statements in 2014, the Veteran wrote that in service, on field assignments in Vietnam, he sometimes had to jump to the ground from hovering helicopters in hot zones, while under fire by the enemy. He asserted that on landing from such jumps he sustained right knee injury. In private treatment in December 2014, the Veteran reported a history of right knee surgeries in 2005, 2008, and 2009. In May 2017 the Veteran's mother wrote about changes in the Veteran when he returned home from Vietnam in 1971. She noted spots on his skin, nervousness, mood swings, and snoring. In the June 2019 hearing, the Veteran reported that he sustained right knee injury in service when he jumped from helicopters, particularly on landing from one such jump. He stated that he did not report his right knee pain or see a medic at that time. He related that the knee continued to hurt with walking, but he did not see a medic. He reported that, when he returned home from service, his mother met his plane, and she noticed that he was limping on his right knee. He said that after service he did not think much about his right knee until three to five years after service, when he had sudden problems with that knee, described as the knee popping or going out. He reported that he had arthroscopic surgery on his right knee when he was about 30 years old. He indicated that the doctor he saw then found evidence of an old injury. He related that records from that doctor are no longer available. He stated that eventually he had right knee surgeries including total replacement, revision, and a second total replacement. In arguments submitted in October 2020, the Veteran's representative noted the Veteran's reports that in Vietnam he was under enemy fire. The representative asserted that Section 1154(b) applies in the Veteran's case. On VA examination in April 2021, the Veteran stated that during service he jumped out of a helicopter. He reported that on landing he twisted his right knee. He stated that he did not seek treatment then. He indicated that right knee problems worsened over time. He stated that he had right knee arthroscopic surgery in 1983. He reported having right knee replacement surgery in 2005. He related that presently he had right knee pain and swelling and difficulty with stairs. The examiner observed that the right knee had full ranges of motion. The examiner concluded that with repeated use over time and prolonged standing and sitting the Veteran had right knee pain that limited function of that knee. The examiner did not find that the current condition of the right knee produced disturbance of locomotion. The examiner found that the Veteran had right knee patellofemoral syndrome, status post arthroscopy. The examiner expressed the opinion that the current disorder was less likely than not incurred with or caused by the landing from jumping from a helicopter during service. In explanation, the examiner noted that the Veteran's STRs do not show evidence of right knee injury, that his right knee arthroscopy was about ten years after service, and that his right knee replacement was more than 30 years after service. It is also noted that the examiner considered the Veteran's self-reported history of knee injury in service and problems thereafter. The Veteran has current right knee problems. He has a history of arthroscopic surgery in the 1980s. He had right knee replacement and revisions after 2000. There is no evidence of right knee arthritis within a year of service separation. Therefore, there is no basis to presume service connection for right knee arthritis. The Veteran provides evidence of right knee injury in service through his accounts that he had right knee pain upon landing from jumping from helicopters, and with walking afterwards. The Veteran's service records show that he served in Vietnam repairing communications equipment. His accounts that he sometimes performed those duties out in the field and sometimes came under enemy fire are consistent with his service duties and location. The Board accepts that he came under enemy fire and that he can be considered to have engaged in combat with the enemy. Applying 38 U.S.C. § 1154(b), the Board finds that the Veteran's lay accounts are satisfactory evidence that he jumped from hovering helicopters and experienced right knee pain on landing and afterward. The Veteran states that during service did not see a medic regarding his right knee pain. On medical history and examination at separation from service, no right knee problems were reported or found. The evidence of normal condition at separation from service tends to indicate that the right knee injury and pain in service did not become a chronic condition. The Veteran states that his mother noticed a right knee limp on his return home from service. In his mother's 2017 statement about his condition after service, she did not mention his knee or his gait. The Veteran states that for several years after service he did not think much about the condition of his right knee. The evidence about his right knee soon after his service leans against the existence of noticeable, persistent symptoms continuing directly after his service. The Veteran states that in the early 1980s a treating doctor observed evidence of an old injury of the right knee. He stated that records from that treatment are not available. Without additional information, the doctor's statement as related by the Veteran does not specifically link the condition of the Veteran's right knee in the 1980s to the right knee pain he experienced during his service. By the Veteran's accounts, he experienced right knee pain in service, and in the early 1980s he experienced sudden right knee problems and underwent arthroscopic surgery. In opining against a nexus between the Veteran's current right knee disability and his service, the clinician who examined the Veteran in April 2021 noted the time between the Veteran's service and his post-service right knee problems and surgeries and also noted the Veteran's self-reported history of in-service injury and problems. The greater persuasive weight of the evidence is against continuity or other relationship between the Veteran's right knee pain after landing from jumps in service and his right knee problems treated after service in the 1980s and later. It is noted that the Veteran does not have the requisite expertise in the field of medicine to link his right knee disability to service. As the preponderance of the evidence is against a nexus, the Board denies service connection for the Veteran's right knee disability. 2. Low back disability The Veteran contends that in service, in landing from jumping from hovering helicopters, he sustained low back injury that became chronic low back disability. He also contends that right knee disability, for which he is seeking service connection, altered his gait and body mechanics and caused or aggravated disability of his low back. The Veteran's STR do not reflect any reports of low back injury or problems. At separation from service, in February 1972, the Veteran marked no for history of recurrent back pain. The examiner marked normal for the condition of his spine. The Veteran has not identified records of post-service medical treatment through the remainder of the 1970s. In his VA Agent Orange Registry examination in March 1985, he did not report any problems with his back. On examination of his back, the straight leg raising testing was negative. In VA treatment in May 2007, the reported low back problems, with a history of L3-L5 decompression surgery in 2001. In private treatment in December 2014, he again related a history of back surgery in 2001. In an August 2014 notice of disagreement, the Veteran wrote that in service, on landing from jumping from hovering helicopters, he sustained injuries of his low back and right knee. He noted that while jumping from helicopters he wore and carried heavy gear and equipment. In the June 2019 Board hearing, the Veteran reported that the chiropractor who treats him told that his right leg is shorter than his left leg, because he constantly limps on his right leg. The Veteran reported that the chiropractor stated that the leg length discrepancy tilted him to the side, which could cause his back pain. On VA examination in April 2021, the Veteran reported that with jumping out of helicopters in service he experienced right knee and low back pain. He also indicated that chronic right knee problems caused or aggravated low back problems. He stated that in service he did not seek treatment for right knee or low back pain. He indicated that low back problems worsened over time. He reported that he had lumbar spine laminectomy surgery in 2000 or 2001. He stated that presently he had low back pain, stiffness, limitation of motion, and weakness. He reported that his low back problems reduced his endurance and his capacity for lifting. He related treatment with analgesics as needed. The examiner observed a scar from the laminectomy. The examiner noted that degenerative arthritis of the lumbar spine was diagnosed in 2019. Lumbar spine x rays showed no acute lumbar fracture or subluxation. Those x-rays showed moderate spondylotic changes. On the 2021 examination, the Veteran had full ranges of motion of the thoracolumbar spine. The examiner found that, with repeated use over time the Veteran's low back would have decreased ranges of motion and limits on function due to pain. On examination of the right knee, examiner did not find that the condition of that knee produced disturbance of locomotion. The examiner expressed the opinion that the condition of the Veteran's low back status post laminectomy was less likely than not related to jumping from helicopters in service. In explanation, the examiner noted that the Veteran never sought service for back pain during service, and that his lumbar surgery was about 28 years after service. The examiner expressed the opinion that current condition was less likely than not related to the Veteran's right knee condition. In explanation, the examiner cited an orthopedic textbook statement that injury in one area would not have a significant impact on another area unless the injury caused paralysis or a leg length discrepancy of more than five centimeters, so as significantly alter the gait pattern. The examiner stated that the Veteran's right knee did not have any of those disorders. The examiner also noted that the Veteran never went to sick call for right knee pain during service. The Veteran has a history of lumbar spine surgery in 2001 and has current lumbar spine arthritis. There is no evidence of arthritis in his lower spine within one year of service separation. Therefore, there is no basis to presume service connection for his lumbar spine arthritis. As noted above, the Board accepts that the Veteran's accounts that he came under enemy fire when he repaired communications equipment in the field in Vietnam. The Board finds that his exposure to enemy fire constituted engaging in combat with the enemy. Applying 38 U.S.C. § 1154(b), the Board finds that the Veteran's lay accounts are satisfactory evidence that he jumped from hovering helicopters and experienced low back pain on landing. On medical history and examination at separation from service, no low back problems were reported or found. The evidence of normal condition at separation from service tends to indicate that the low back pain he experienced in service did not become a chronic condition. There are no contemporaneous records reflecting low back symptoms or problems during or soon after service. The evidence about the Veteran's low back from during and soon after his service leans against the existence of noticeable, persistent symptoms through that era. The Veteran's lumbar laminectomy was performed almost 30 years after service. In opining against a nexus between the Veteran's current low back disability and his service, the clinician who examined the Veteran in April 2021 noted the time between the Veteran's service and his post-service low back problems and surgery. The examiner also considered the Veteran's self-reported history of inservice injury and ongoing low back problems since then as well as the theory that his right knee disability caused or aggravated his low back disability but found other evidence more compelling. The greater persuasive weight of the evidence is against continuity or other relationship between his low back pain after landing from jumps in service and his low back problems treated years after service. The Board concludes that events in service did not produce chronic, continuing low back problems. In the present decision, above, the Board denies service connection for his right knee disability. His right knee therefore cannot form a basis for secondary service connection for his low back disability. The Veteran's claims regarding the etiology of his back disability are acknowledged; however, he does not have the requisite competence to speak to such matters. In summary, the Board denies service connection for the Veteran's low back disability on presumptive, direct, or secondary bases. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.