Citation Nr: 21063197 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-61 566 DATE: October 13, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Entitlement to service connection for bilateral ankle disability manifested by pain is granted. Entitlement to service connection for bilateral knee disability manifested by pain is granted. REMANDED Entitlement to service connection for bilateral wrist disability is remanded. Entitlement to service connection for bilateral hip disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REFERRED The issue of entitlement to an increased rating for other specified depressive disorder with anxiety was raised by the Veteran during the September 2021 Board hearing. This matter is referred to the agency of original jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current degenerative arthritis of the lumbar spine began during service. 2. The evidence is at least evenly balanced as to whether the Veteran's current bilateral ankle disability began during service. 3. The evidence is at least evenly balanced as to whether the Veteran's current bilateral knee disability began during service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative arthritis of the lumbar spine are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral ankle disability are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral knee disability are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2007 to July 2008, which includes service in the Southwest Asia theater of operations. He had additional service with the Army National Guard, to include a period of active duty for training (ACDUTRA) from June 2005 to September 2005. His awards include the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from a March 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is awarding service connection for degenerative arthritis of the lumbar spine, bilateral ankle disability, and bilateral knee disability (thus reflecting a full grant of the benefits sought as to these matters) and is remanding the claims of service connection for bilateral wrist disability, bilateral hip disability, and bilateral hearing loss for further development, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "Active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis is included among the list of chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Entitlement to service connection for degenerative arthritis of the lumbar spine, bilateral ankle disability, and bilateral knee disability The Veteran contends that he has current back disability, bilateral ankle disability, and bilateral knee disability, and that all of these disabilities had their onset in service. The Board finds, for the following reasons, that the Veteran has current degenerative arthritis of the lumbar spine, bilateral ankle disability manifested by pain, and bilateral knee disability manifested by pain, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. The report of a VA back examination dated in February 2019 indicates that the Veteran has been diagnosed as having degenerative arthritis of the lumbar spine. Therefore, current back disability has been demonstrated. Also, the Veteran's medical records (including, but not limited to, an October 2016 VA physical medicine rehabilitation consultation note, a September 2018 examination report from K. Frederick, DO, and a June 2020 VA primary care physician note) reflect that he experiences bilateral ankle and knee pain which is worsened by physical activities and requires him to "take it easy for several days to recover." Although there is no evidence of any specifically diagnosed ankle or knee disability during the claim period, the evidence of ankle and knee pain alone is sufficient in some circumstances to show the existence of current ankle and knee disability. See Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110). In this case, there is evidence that the Veteran's bilateral ankle and knee pain causes impairment in earning capacity. Therefore, the current disability requirement has also been met with respect to the Veteran's claimed bilateral ankle and knee disabilities. Moreover, there is evidence of back, bilateral ankle, and bilateral knee symptoms in service and evidence of continuous back, ankle, and knee symptoms in the years since service. In this regard, service treatment records reflect that the Veteran was treated for left knee pain during a period of ACDUTRA in August 2005. Examination revealed tenderness on palpation of the left knee at the distal iliotibial band and painful knee motion and the Veteran was diagnosed as having left iliotibial band syndrome. Also, the Veteran has reported that he experienced back, bilateral ankle, and bilateral knee symptoms while deployed to Iraq during his period of service from June 2007 to July 2008. Specifically, during this period he began to experience back pain after bending over to pick up a cooler, experienced repetitive bilateral ankle sprains, repeatedly twisted his knees, and fell on his knees. The Veteran's DD Form 214 for his period of service from June 2007 to July 2008 reflects that he served in Iraq from August 2007 to May 2008. He has reported on several occasions (including on an October 2007 "Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder" form (VA Form 21-0781) and during a February 2016 VA psychiatric examination) that while serving in Iraq, his unit was attacked by enemy rocket, mortar, and small arms fire. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran is competent to report his exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts his reports. In support of his contentions, he submitted statements from J.R. and P.W. dated in November and December 2018, who confirm that they served with the Veteran in Iraq and that their unit received incoming enemy fire during that time. Therefore, the Board finds that the Veteran's reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Iraq. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran's reports of back, bilateral ankle, and bilateral knee problems in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Iraq. There is no clear and convincing evidence to the contrary. The Veteran's service treatment records include a September 2008 Post-Deployment Health Re-Assessment form and Periodic Health Assessment forms dated in July 2009 and July 2010 which indicate that during his service in Iraq, he began to experience back pain after wearing body armor and bilateral ankle pain/instability. Also, in their November and December 2018 statements, J.R. and P.W. reported that the Veteran injured his back, ankles, and knees during their deployment to Iraq. Therefore, in light of these lay reports and the evidence in the Veteran's service treatment records, the presence of back, bilateral ankle, and bilateral knee problems in service is established. Moreover, the Veteran's post-service medical records and lay statements indicate that he has experienced continuous back, bilateral ankle, and bilateral knee symptoms in the years since service. The Veteran is competent to report continuous back, bilateral ankle, and bilateral knee symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that he has provided some information which is inconsistent with a continuity of symptomatology in the years since service. For instance, he reported on reports of medical history forms dated in May 2009, October 2011, December 2011, and June 2012 that he was neither experiencing, nor had he ever experienced, any back pain/back problem, swollen or painful joints, or knee trouble. Nevertheless, these reports are themselves inaccurate because, as explained above, there is evidence of back, ankle, and knee problems during service. There is no other evidence that explicitly contradicts the Veteran's reports and his reports are otherwise generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board concludes that his reports of continuous back, bilateral ankle, and bilateral knee symptoms in the years since service are credible. A May 2016 VA rheumatology outpatient note indicates that the Veteran reported that he injured his back in service. The nurse practitioner who conducted the May 2016 evaluation opined that the Veteran's back pain was very likely from his previous injury, given that this area was previously injured. There was no further explanation or rationale for this opinion. The physiatrist who conducted a September 2017 VA back examination opined that the Veteran's claimed back disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned, in pertinent part, that the longitudinal medical evidence provided and reviewed did not support a finding that the Veteran sustained a chronic, disabling low back condition/diagnosis during service. His service treatment records were silent for a chronic disabling low back condition and records dated in October 2011 revealed that he reported that he was not experiencing any back problems. He was first treated for low back pain in August 2015, which was 7 years after his separation from service. In his September 2018 examination report, Dr. Frederick reported that during the Veteran's deployment to Iraq he twisted his ankles and knees on multiple occasions and fell on his knees. He also hyperextended his knee by stepping in holes from time to time while deployed. These injuries resulted in recurrent problems for both knees and ankles during the previous 10 years. Dr. Frederick opined that it was likely ("more likely than not") that the Veteran's ankle and knee symptoms were service-related. There was no further explanation or rationale provided for this opinion. The nurse practitioner who conducted the February 2019 VA back examination opined that the Veteran's claimed back disability was likely ("at least as likely as not"/"50 percent or greater probability") incurred in or caused by service. She reasoned that the Veteran's claimed back disability occurred while in service and that he continued to experience symptoms related to the injury. The September 2017 opinion is of little, if any, probative value because it is at least partially based upon an inaccurate history. Specifically, it is partially based on a finding that the Veteran's service treatment records were silent for a chronic disabling low back condition. However, as explained above, there is evidence of back pain during his deployment to Iraq documented in his service treatment records. Therefore, the September 2017 opinion is partially based on an inaccurate history and is of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely"). Also, the September 2017 opinion does not take into account the competent and credible lay reports of back problems in service and continuous back symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). This is particularly true in the case of a combat veteran. Congress enacted the combat statute because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, to the extent that the September 2017 opinion was based on a lack of report of chronic back problems during service, this is precisely the reasoning that the combat law was designed to prevent. Although the May 2016 and September 2018 opinions are not accompanied by any specific explanation or rationale, the medical professionals provided the opinions based upon their treatment of the Veteran and consideration of his reported history. These opinions are therefore entitled to some probative weight. See Monzingo, 26 Vet. App. at 106 (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, the February 2019 opinion is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, this opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran experienced back, bilateral ankle, and bilateral knee problems in service and that there have been continuous back, ankle, and knee symptoms in the years since service. He also experiences current degenerative arthritis of the lumbar spine, bilateral ankle disability manifested by pain, and bilateral knee disability manifested by pain, and there are probative medical opinions that these disabilities are related to service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for degenerative arthritis of the lumbar spine, bilateral ankle disability manifested by pain, and bilateral knee disability manifested by pain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). REASONS FOR REMAND 1. Entitlement to service connection for bilateral wrist disability and bilateral hip disability are remanded. The Veteran contends that he experiences current bilateral wrist and bilateral hip symptoms that began during service and have continued in the years since service. Also, the Board has awarded service connection for degenerative arthritis of the lumbar spine and the Veteran's treatment records reflect that he has experienced back pain which occasionally radiates to his hips. Overall, there is evidence that the Veteran has persistent or recurrent symptoms of bilateral wrist disability and bilateral hip disability and that any such disabilities may be related to service or now service-connected disability, and the record does not contain sufficient information to make a decision on the claims. Therefore, the Veteran should be afforded appropriate examinations upon remand to assess the nature of his claimed bilateral wrist and hip disabilities and to obtain medical opinions as to whether any such disabilities are related to service or are caused or aggravated by now service-connected back disability. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the St. Louis Vista electronic records system (dated to May 2020) and the Kansas City Vista electronic records system (dated to January 2021). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for bilateral hearing loss is remanded. Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in February 2016 to assess whether any current hearing loss is related to service. Examination revealed that he did not have any hearing loss disability as defined by VA. See Id. He reported during the September 2021 Board hearing that his hearing had worsened since the February 2016 examination. In light of this fact and the fact that additional treatment records are being sought upon remand which may include evidence of current hearing loss disability, the Board finds that the Veteran should be afforded a new examination to determine whether he has any current hearing loss disability and to obtain a medical opinion as to whether any such disability is related to service. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for hearing loss, hip disability, and wrist disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for hearing loss, hip disability, and wrist disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the St. Louis Vista electronic records system for the period since May 2020; the Kansas City Vista electronic records system for the period since January 2021; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current wrist disability and whether any such disability is related to service. The examiner must opine whether any wrist disability experienced by the Veteran since approximately August 2015 at least as likely as not (1) began during any period of active service; (2) manifested within one year after discharge from his period of service from June 2007 to July 2008 (in the case of any currently diagnosed arthritis); OR (3) is related to an in-service injury or disease. For purposes of the above opinion, the examiner shall presume that any reports by the Veteran of wrist problems in service are accurate. The examiner must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current hip disability and whether any such disability is related to service. The examiner must opine whether any hip disability experienced by the Veteran since approximately August 2015 at least as likely as not (1) began during any period of active service; (2) manifested within one year after discharge from his period of service from June 2007 to July 2008 (in the case of any currently diagnosed arthritis); (3) is related to an in-service injury or disease; (4) is caused by service-connected degenerative arthritis of the lumbar spine; OR (5) is aggravated by service-connected degenerative arthritis of the lumbar spine. For purposes of the above opinion, the examiner shall presume that any reports by the Veteran of hip problems in service are accurate. The examiner must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current hearing loss and whether any such disability is related to service. The examiner must opine whether any hearing loss experienced by the Veteran since approximately August 2015 at least as likely as not (1) began during any period of active service; (2) manifested within one year after discharge from his period of service from June 2007 to July 2008; OR (3) is related to an in-service injury or disease, including noise exposure. For purposes of the above opinion, the examiner shall presume that any reports by the Veteran of hearing problems in service are accurate. The examiner must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.