Citation Nr: 21062985 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-22 844 DATE: October 12, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. The competent and probative evidence of record indicates that the Veteran's right knee disability had its onset in service. 2. The competent and probative evidence of record indicates that the Veteran's back disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to May 1992 with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of the hearing is of record. In a March 2021 letter, the Veteran was notified that the Veterans Law Judge who conducted the 2017 hearing was no longer employed at the Board. The letter stated that, pursuant to 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707, the law required that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal, and as that person was no longer available, the Veteran's appeal would be assigned to another Veterans Law Judge for a decision. The letter notified the Veteran of his right to request another optional Board hearing and indicated that if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. To date, the Veteran has not filed any correspondence indicating a desire for another hearing. The Board will accordingly proceed with a decision in this matter. In a March 2020 decision, the Board denied the claims for service connection for a right knee disability and a back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a February 2021 Order, the Court vacated the March 2020 Board decision and remanded the claims to the Board for compliance with instructions pursuant to a February 2021 Joint Motion for Remand (JMR). The parties to the JMR agreed that the Board failed to provide an adequate statement of reasons and bases to support its March 2020 decision and did not substantially comply with the September 2019 JMR when it denied service connection for a right knee disability and a back disability. The parties explained that the Board denied the claims for lack of a nexus between the in-service injuries and current disabilities. In reaching the decision, the Board found the Veteran incredible because he did not seek treatment for his condition until 2012 or 2013, more than 20 years after service. To support its credibility determination, the Board cited to Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) and correctly noted that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service-connected claim, but the parties agreed that the Board's analysis was incomplete as it failed to comply with the requirements set forth in more recent case law and cited to by the parties in the September 2019 JMR, specifically, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Fountain v. McDonald, 27 Vet. App. 258, 272-73 (2015). In this regard, the September 2019 JMR noted that when the Board determines that a veteran's reports of symptoms are not credible because they are not accompanied by documented treatment, it must lay a proper foundation as to why the absence of treatment would indicate that the veteran did not experience those symptoms. Id. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As an alternative to the nexus requirement, service connection for a chronic disability, such as arthritis, may be established through a showing of continuity of symptomatology since service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a right knee disability is granted. The Veteran contends that his right knee disability originated in service and has continued since. First, the evidence demonstrates a current disability. Specifically, the Veteran has been diagnosed with right chondromalacia patellae and femoral condyles since January 2012; right meniscal tear since January 2012; right knee degenerative joint disease since October 2014; right patellofemoral syndrome since January 1985; right knee contusion since February 1990; right knee sprain since September 1988; and right knee soft tissue injury since December 1984 as shown on the October 2014 VA knee examination. Accordingly, the Board finds that the first element of service connection is established. See Shedden, 381 F.3d at 1166-67. The Veteran's service treatment records indicate complaints of right knee pain and injuries. Undated service treatment records document complaints of a right knee injury but full range of motion. In December 1984 and January 1985, he complained of right knee pain from basic training. An assessment of patellofemoral syndrome (PFS) was provided. In July 1985, he reported a right knee injury and associated pain with moving and walking. An assessment of soft tissue injury was noted. A May 1986 screening note for acute medical care documents complaint of right knee pain for the past year. An assessment of PFS was provided. March 1987 x-rays of both legs were essentially negative. In March 1988, the Veteran complained of right knee pain from playing racquetball. An assessment of contusion right knee and possible twisted knee was provided. In September 1988, he reported falling on his right knee when he wrecked a tank. An assessment of right knee sprain was provided. In February 1990, he complained of right knee pain from twisting his knee while working on a track. Based on x-rays, an assessment of contusion right knee was provided. At a follow-up appointment the same month, an assessment of no traumatic injury was noted. In April 1990, the Veteran complained of a right knee injury while playing football. An assessment of reaction to old injury was noted. In October 1991, he sustained a right knee injury while playing football. X-rays of the right knee showed a medial collateral ligament tear, but no fracture or dislocation. Follow-up records document minimal discomfort and small effusion. On his February 1992 separation report of medical history, the Veteran marked "yes" as to trick or locked knee. As such, the second element of service connection has been met. Id. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed knee conditions and his service. On this question, the Board finds that service connection is warranted. Post-service, a private operative report in January 2012 documents a right knee procedure to repair a possible meniscus tear. A pre-operative diagnosis of right knee pain with uncertain etiology, possible meniscus tear was provided. Post-operative diagnoses of right knee chondromalacia of the patella with associated chondromalacia of the lateral femoral condyle, anterolateral synovial plica, and chondromalacia of the medial femoral condyle overlying a small tear of the medial meniscus were noted. A medical opinion as to the cause or origin of the pathology was not provided. The Veteran underwent VA knee examination in October 2014. At that time, he reported an injury to his right knee during physical training in service. He claimed that he has had right knee pain in and since service but did not seek treatment until 2012 when he underwent a right knee orthoscopic procedure. The examiner opined that the Veteran's current right knee condition is less likely than not related to service. As rationale, the examiner stated that in-service injuries had since resolved without residuals. The examiner acknowledged multiple right knee injuries during service, diagnosed as acute sprains or contusions, but stated that they have since resolved without residuals. As for PFS, the examiner noted that medical literature does not support a nexus between PFS and a later diagnosis of patellofemoral osteoarthritis. The examiner explained that PFS and chondromalacia patella are distinct disorders. Further, the examiner reported that there is no evidence of chronicity of care or complaints of knee pain. The examiner noted that risk factors of degenerative joint disease include "increased age, occupational or recreational activities, repetitive stress or loading of joints, previous injury or trauma, obesity, smoking, and genetic factors." The Board notes the Veteran's competent claims that he has had continuous right knee symptoms since service. While the Veteran did not seek treatment until 2012, approximately 20 years after service, he provided testimony that he did not have the means to seek treatment after his separation from service an instead used an endless series of knee braces as well as cold treatment, hot treatment and anything and everything until he could not take the pain any longer and had to have his knee operated on. Although the passage of time between discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the claim, given the Veteran's explanation for the lack of contemporaneous medical records until nearly 20 years after service, the Board finds the Veteran's reports as to the continuity of his symptoms since service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). In so finding, the Board acknowledges the negative VA opinion of record. However, the examiner provided contradictory findings, in that he found that the claimed right knee disability was not related to service, but then noted diagnoses of right PFS since 1985, right knee contusion since 1990, right knee sprain since 1988, and right knee soft tissue injury since 1984. In addition, the Veteran's consistent reports of knee problems since service were not taken into account. Accordingly, the Board finds his opinion of little probative value and insufficient to establish that the current right knee disability is clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Given the notation of the in-service right knee complaints/injuries, continued knee complaints and treatment since service, the post-service diagnosis of arthritis, and the Veteran's competent and credible reports that his right knee symptoms began in and have continued since service, the Board finds that the Veteran's right knee disability, had its onset during service and is etiologically related to service. Service connection is therefore warranted. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d at 1331. 2. Entitlement to service connection for a back disability is granted. The Veteran contends that his back disability is the result of an in-service motor vehicle accident, involving a tank, that resulted in back pain during service which has continued since that time. First, the evidence demonstrates a current disability. Specifically, the Veteran has been diagnosed with lumbosacral degenerative disc disease since September 2013; lumbosacral degenerative joint disease since September 2013; and back injury since March 1992 as shown on the October 2014 VA back examination. Accordingly, the Board finds that the first element of service connection is established. See Shedden, 381 F.3d at 1166-67. The Veteran's service treatment records document complaints of back pain. In February 1989, the Veteran complained of lumbar back pain due to an accident. X-rays showed no fracture, and an assessment of lumbosacral pain was provided. On his February 1992 separation examination, clinical evaluation of the spine was normal. Upon the accompanying separation report of medical history, the Veteran marked "no" as to arthritis and recurrent back pain. In March 1992, he sustained an injury to the back from wrestling. X-rays of the thoracic spine revealed no evidence of trauma. As such, the second element of service connection has been met. Id. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed back conditions and his service. On this question, the Board finds that service connection is warranted. The Veteran underwent VA back examination in October 2014. At that time, he reported lower back pain in and since service without specific injury. He stated that his pain has gradually increased over time and he did not seek treatment until July 2013. The examiner opined that the Veteran's current lumbar spine conditions are less likely than not incurred in or caused by service. As rationale, the examiner acknowledged a remote history of a motor vehicle accident, causing lower back pain; however, the examiner stated it has since resolved without residuals. The examiner reported that medical literature does not support a nexus to link these conditions. The examiner noted that the Veteran's 1992 separation examination contained no complaints of backpain. Further, there is no evidence of chronicity of symptoms, as the Veteran did not seek treatment until 2013 many years after service. The examiner noted that risk factors for lower back conditions include "increased age, occupational or recreational activities, repetitive stress or loading of joints, previous injury or trauma, obesity, smoking, and genetic factors." The Board notes the Veteran's competent claims that he has had continuous symptoms of back pain since service. While the Veteran did not seek treatment until 2013, approximately 20 years after service, he provided testimony that he did not have the means to seek treatment after his separation from service and noted the culture of the military which dissuaded him from seeking treatment during service. To that end, he stated that at the time of his injury he was instructed to "run it until it blows up and we will rebuild it." He stated that he hurt his back and, like everyone else, did not make a big issue of it. He explained that he was a gunner on a tank and stated that "you do not get through a work-week without banging yourself up on something." Although the passage of time between discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the claim, given the Veteran's explanation for the lack of contemporaneous medical records until nearly 20 years after service, the Board finds the Veteran's reports as to the continuity of his symptoms since service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). In so finding, the Board acknowledges the negative VA opinion of record. However, the examiner provided contradictory findings, in that he found that the claimed back disability was not related to service, but then noted a diagnosis of a back injury since March 1992. In addition, the Veteran's consistent reports of back problems since service were not taken into account. Accordingly, the Board finds the VA examiner's opinion is of little probative value and insufficient to establish that the current back disability is clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Given the notation of the in-service back complaints/injuries, continued back complaints and treatment since service, the post-service diagnosis of arthritis, and the Veteran's competent and credible reports that his back symptoms began in and have continued since service, the Board finds that the Veteran's back disability had its onset during service and is etiologically related to service. Service connection is therefore warranted. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d at 1331. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.