Citation Nr: 21064181 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-19 868 DATE: October 19, 2021 ORDER Service connection for a low back disability, diagnosed as a lumbosacral strain, is granted. Service connection for a right knee disability is granted. FINDINGS OF FACT 1. The Veteran's low back disability, diagnosed as lumbosacral strain, had its onset in service. 2. The Veteran's right knee disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, diagnosed as lumbosacral strain, have been met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1980 to February 1982. She also had additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for a low back and for a right knee disability. In August 2021, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. 1. Low Back Disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that she has a low back disability that is related to service. She specifically maintains that she was treated extensively for low back problems during service. The Veteran reports that she has suffered from low back problems since service. She states that she received treatment for low back problems after service beginning in 1984. The Veteran essentially asserts that she suffered from low back problems during service and since service. The Veteran served on active duty in the Army from February 1980 to February 1982. She also had additional service in the Army Reserve. Her DD Form 214 lists her occupational specialties as a Lance crewmember for one year and nine months, and as in SR3 nuclear security for eleven months. The Veteran's service treatment records show that she was treated for low back problems on multiple occasions during service. A September 1980 treatment entry notes that the Veteran complained of falling off of a five-ton vehicle the previous night, which caused pain to her lower back. The examiner reported that the Veteran had tenderness to palpation of her lower back, without edema or discoloration. It was noted that the Veteran had full range of motion, with pain. The assessment was low back pain. An October 1980 entry indicates that the Veteran complained of back pain, which first started five days earlier. She stated that she fell off of a truck. The Veteran reported that the pain was worse than it was on the first day of her injury. The assessment was a pulled muscle. Another October 1980 entry, on that same day, notes that the Veteran was seen at a physical therapy clinic. The examiner reported that the Veteran had full range of motion, with lordosis, and pain over the spine. The assessment was a stress reaction from a sway back. A subsequent October 1980 treatment entry reflects that the Veteran complained of back pain, to include the whole back area. She stated that the pain started from the lumbosacral area, and that the pain went up the spine to the thoracic area, for seventeen days. The Veteran indicated that she fell off of a five-ton vehicle and that she had been seen several times. She maintained that when she walked for long periods of time, or that when she would run, etc., her back would worsen. It was noted that the Veteran would be referred to a physical therapy clinic. A further October 1980 entry, on that same day, from a physical therapy clinic, notes that the Veteran had full range of motion, with pain to palpation in the lumbar and thoracic areas, with no radicular pain. The assessment was a strain. A later October 1980 treatment entry notes that the Veteran complained of back pain. The Veteran reported that she had a past history of the same problem. She stated that she fell off of a five-ton vehicle in September 1980. The examiner reported that the Veteran had some point tenderness of the paraspinal muscles of the lower back, with pain radiating up the spinal column to both sides of the upper torso. It was noted that there was no edema or discoloration. The assessment was secondary pain from a prior injury. A treatment entry, from a clinic, on that same day, notes that the Veteran was referred from a dispensary. The assessment was a strain. An additional October 1980 entry indicates that the Veteran complained of low back pain secondary to a fall from a truck two to three months earlier. She reported that she had morning pain, radiating upward, which was constant. The assessment was a normal examination. A December 1980 entry notes that the Veteran fell and injured her back, which was not considered disabling. The examiner reported that the Veteran complained of acute low back pain after a fall that day. The assessment was low back pain syndrome. An August 1983 record of acute medical care, for Reserve purposes, notes that the Veteran complained of low back pain for three days. She reported that she had no trauma, but that she had pain with standing and sitting. The assessment was low back pain. Post-service private treatment records, as well as a VA examination report, show treatment for variously diagnosed low back problems, including low back pain; back pain, left lower area; an unspecified backache; lumbago and pain in joint, lower leg, and lumbosacral strain. An April 2015 VA back conditions examination report includes a notation that the Veteran's claims file was reviewed. The examiner reported that the Veteran suffered a fall in "1981" and that she was treated with rest and medication. The examiner stated that the Veteran reported occasional low back pain. The diagnosis was lumbosacral strain. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner stated that there was no evidence of any connection. The examiner maintained that there was no clearly documented continuum of care from service until 1990. A September 2021 lay statement from the Veteran's mother indicates that upon the Veteran's return from the military, she complained about her back and knee, and that she could see that the Veteran was in physical pain. She reported that because of the Veteran's pregnancy, at that time, there was nothing that could be done about having physical therapy. The Veteran's mother reported that the Veteran went to several doctors concerning her issues throughout the years, but that all they seemed to prescribe was therapy and medicine. She maintained that the Veteran was, presently, constantly in pain, with both her back and knee issues. A September 2021 lay statement from the Veteran's husband indicates that he knew the Veteran since they were in high school, and that they dated until she went into the military. The Veteran's husband reported that upon the Veteran's return from the military, she was different in the sense that she was not as active as she used to be. He stated that he can't speak to how many doctors that she saw prior to their marriage in 2008, but that she has seen doctors many times since their marriage concerning her back and knee issues. The Veteran's husband indicated that the Veteran could not go on walks because after approximately ten minutes, she would be limping, as well as complaining about her back. He stated that the Veteran has been seen by doctors and in therapy, and that she had been given medications to take when she was in a great deal of pain. A September 2021 lay statement from the Veteran's brother notes that when the Veteran returned from the military, and after she had her baby, she began to see doctors due to her back and knee pain. The Veteran's brother stated that the Veteran lived with him, at that time, and he would constantly see her struggling with pain. It was noted that the doctors she would visit would give her pain medication and physical therapy. The Veteran's brother maintained that the Veteran had constantly visited doctors through the years, and that she still had issues with both her back and knee. A September 2021 lay statement from the Veteran's son indicates that growing up with a mother who endured back and knee pain most of his life was difficult for all involved. He stated that he could recall countless doctor trips and therapy sessions for the injuries that the Veteran sustained in the military. The Veteran's son stated that all of their lives changed the day that she was injured. A September 2021 lay statement from the Veteran's daughter indicates that she remembered that, as a child, the Veteran was always going back and forth to doctors for pain in her back and her knee. She maintained that as a child, and even as an adult, the Veteran had been either visiting doctors, or in therapy, for the injuries she sustained in the military. A September 2021 lay statement from S. B., indicates that she had known the Veteran since they were teenagers. S. B., stated that since the Veteran's return from the military in 1982, she had constantly complained about, and had been seen doctors regarding, her back and knee. She reported that the Veteran sometimes had limited mobility due to the injuries she sustained in the military. A September 2021 lay statement from T. B., notes that she could attest that the upon the Veteran's return from the military, she had chronic back and knee pain. T. B., stated that the Veteran continually went to doctors to see if there was anything they could do, but that she would just be given therapy and medication. The Board observes that the Veteran's service treatment records show that she was treated for low back problems on multiple occasions during service, and that she was diagnosed with low back pain; a stress reaction from a sway back; a strain; secondary pain from a prior injury, and with low back pain syndrome. Additionally, the Board notes that post-service treatment records show treatment for variously diagnosed low back problems, including low back pain; back pain, left lower area; an unspecified backache; lumbago and pain in joint, lower leg, and lumbosacral strain. The Board notes that an April 2015 back conditions examination report relates a diagnosis of lumbosacral strain. The examiner reported that the Veteran suffered a fall in "1981" and that she was treated with rest and medication. The examiner, following a review of the claims file, indicated that the claimed condition was less likely than not incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner stated that there was no evidence of any connection. The examiner maintained that there was no clearly documented continuum of care from service until 1990. The Board observes that the examiner reported that the Veteran suffered a fall in "1981" and that she was treated with rest and medication. The Board notes, however, that the Veteran's service treatment records show that she was treated for back problems on multiple occasions, with diagnoses of low back pain; a stress reaction from a sway back; a strain; secondary pain from a prior injury, and with low back pain syndrome. Additionally, the Board notes that the examiner stated that there was no evidence of a connection with service, and no clearly documented continuum of care from service until 1990. The Board observes, however, that an August 1983 record of acute medical care, for Reserve purposes, subsequent to the Veteran's period of active duty from February 1980 to February 1982, notes that she complained of low back pain for three days and relates an assessment of low back pain. Additionally, the Board notes that the examiner did not specifically address the Veteran's reports of low back problems during service and since service. The Board observes that the Veteran is competent to report lumbar spine and/or low back problems during service and since service. See Davidson, 581 F.3d at 1313. Further, the Board notes that the examiner was not able to review the subsequent September 2021 lay statements from the Veteran's family members, including her mother, husband, and brother, as well as lay statements from S. B., and T. B., which indicate that the Veteran complained of back problems when she returned from the military. Therefore, the Board finds that the opinions provided by the examiner, pursuant to the April 2015 VA back conditions examination report, are not probative in this matter. The Board observes that the Veteran is currently diagnosed with a low back disability, diagnosed as lumbosacral strain. The Board finds the Veteran's reports of low back problems during and since her period of service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also finds the statements from the Veteran's family members, including her mother, husband, and brother, as well as the statements from S. B., and T. B., which indicate that the Veteran complained of back problems when she returned from the military, to be credible. Resolving any doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's low back disability, diagnosed as lumbosacral strain, commenced during her period of service. In light of the evidence, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a low back disability, diagnosed as lumbosacral strain. Therefore, service connection for a low back disability, diagnosed as lumbosacral strain, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. 2. Right Knee Disability The Veteran contends that she has a right knee disability that is related to service. She specifically maintains that her right knee problems began after sustaining a trauma to her right knee during basic training. The Veteran states that her right knee was so swollen during service that her pants leg had to be cut off, which led to her receiving an x-ray. She indicates that she fractured her right knee during service, and that she has suffered from right knee problems ever since service. She reports that she started to receive treatment for her right knee problems after service in 1984. The Veteran essentially asserts that she suffered from right knee problems during service and since service. The Veteran served on active duty in the Army from February 1980 to February 1982. She also had additional service in the Army Reserve. Her DD Form 214 lists her occupational specialties as a Lance crewmember for one year and nine months, and as in SR3 nuclear security for eleven months. The Veteran's service treatment records indicate that she was treated for right knee problems on numerous occasions during service. An April 1980 emergency room report notes that the Veteran complained of a right knee injury for over a week. The Veteran reported that she had been on sick call, and she stated that she had swelling and loss of movement. She maintained that she fell and hit her right knee on a rock. The assessment was a possible contusion. Another April 1980 treatment entry, on that same day, notes that the Veteran complained of pain in her right knee for four days. The examiner reported that she had full range of motion with pain, and some swelling of less than a quarter of an inch. The assessment was a bruised knee. A subsequent April 1980 entry reflects that the Veteran complained of right knee pain and that she was seen in the emergency room on April 8, 1980. The examiner reported that she had a bruised knee with muscle spasms. A further April 1980 entry notes that the Veteran complained of right knee pain. The Veteran reported that she fell on a rock. The impression was a bruise versus a stress fracture. Another April 1980 entry, on that same, notes that the Veteran complained of right knee pain. The examiner reported that such was the third time that the Veteran had been seen. A diagnosis was not provided at that time. A later April 1980 entry indicates that the Veteran complained of right knee pain for one month, and that she had been seen four times. The examiner stated that the knee looked to be swollen around the kneecap. No assessment was provided. An April 1980 treatment entry, on that same day, reflects that the Veteran was seen for right knee pain. The diagnosis was a probable stress fracture. The examiner stated that the Veteran would be sent for bone scan. An April 1980 radiological report notes that the Veteran complained of right knee pain, with palpable tenderness in the medial aspect of the right knee. The examiner reported that a bone scan, as to the right knee, shows that there is a slight increased uptake in the lateral aspect of the right knee at the region of the proximal end of the fibula, or the lateral aspect of the proximal end of the tibia. The examiner stated that such could be due to a healing stress fracture or a localized inflammation. A May 1980 entry notes that a bone scan indicates that the Veteran had a healing stress fracture. A subsequent May 1980 entry reflects that the Veteran reported that she had a right knee injury from a fall. The assessment was the need to rule out a further injury. It was noted that the Veteran was to be evaluated by her previous physician the next morning. A June 1980 emergency care and treatment report notes that the Veteran was seen for numbness in her right knee. The Veteran stated that in April 1980, she fractured her patella by falling on a rock, and that she was supposed to be casted, but refused the cast. The examiner reported that the Veteran was diagnosed with a stress fracture of the proximal tibia in April 1980. The assessment was pain in the right knee, with a history of a stress fracture of the proximal tibia. A June 1980 consultation report, on that same day, indicates that the Veteran had a history of traumat ot the right knee approximately six week earlier. It was noted that the Veteran was followed-up for a possible stress fracture of the tibia. The assessment was mild posttraumatic chondromalacia. A July 1980 entry notes that the Veteran complained of pain in the legs. The assessment was a pulled muscle. Post-service private treatment records, and a VA examination report, show treatment for right knee problems, including a medial meniscus tear, most likely, with additional chondromalacia of the patella; a probable meniscus tear, rule out bursitis; status post an arthroscopic lateral retinacular release; a contusion; and a scope of the right meniscus. An April 2015 VA knee and lower leg conditions examination report includes a notation that the Veteran's claims file was reviewed. The diagnoses were a contusion in 1980, and a scope of the right meniscus in 1986. The examiner also indicated that the Veteran had a meniscal tear on the right side, and that the Veteran underwent a meniscectomy. It was noted that no imaging studies had been performed. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner stated that there was no evidence of any connection. The examiner maintained that there is no clearly documented continuum of care from service until 1986. The Board notes that September 2021 lay statements from the Veteran's mother, husband, brother, son, and daughter, as well as from S. B., and T. B., were reported in the discussion of the low back issue above. The Board observes that the Veteran's service treatment records show that she was treated for right knee problems on numerous occasions during service. Such records reflect diagnoses of a possible contusion; a bruised knee; a bruise versus a stress fracture; a probable stress fracture; a healing stress fracture; pain in the right knee, with a history of stress fracture of the proximal tibia; and mild posttraumatic chondromalacia. Additionally, the Board notes that post-service treatment records show treatment for right knee problems, including medial meniscus tear, most likely, with additional chondromalacia of the patella; a probable meniscus tear, rule out bursitis; status post an arthroscopic lateral retinacular release; a contusion; and a scope of the right meniscus. The Board notes that an April 2015 VA knee and lower leg conditions examination relates diagnoses of a contusion in 1980, and a scope of the right meniscus in 1986. The examiner also indicated that the Veteran had a meniscal tear on the right side, and that the Veteran underwent a meniscectomy. It was noted that no imaging studies had been performed. The examiner, following a review of the claims file, indicated that the claimed condition was less likely than not incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner stated that there was no evidence of any connection. The examiner maintained that there is no clearly documented continuum of care from service until 1986. The Board observes that, in terms of the Veteran's service treatment records, the examiner solely referred to a contusion of the right knee in 1980. The Board notes, however, as discussed above, that the Veteran's service treatment records show treatment for numerous right knee problems, with diagnoses of a possible contusion; a bruised knee; a bruise versus a stress fracture; a probable stress fracture; a healing stress fracture; pain in the right knee, with a history of stress fracture of the proximal tibia; and mild posttraumatic chondromalacia. Additionally, the Board observes that the examiner stated that there was no evidence of a connection with service, and no clearly documented continuum of care from service until 1986. The Board notes, however, that the Veteran has specifically reported that she had right knee problems during service and since service. The Board observes that the Veteran is competent to report right knee problems during service and since service. See Davidson, 581 F.3d at 1313. Further, the Board notes that the examiner was not able to review the subsequent September 2021 lay statements from the Veteran's family members, including her mother, husband, and brother, as well as lay statements from S. B., and T. B., which indicate that the Veteran complained of right knee problems when she returned from the military. Therefore, the Board finds that the opinions provided by the examiner, pursuant to the April 2015 VA knee and lower leg conditions examination report, are not probative in this matter. The Board observes that the Veteran is clearly currently diagnosed with a right knee disability. Post-service treatment records, as well as an April 2015 VA examination report, have shown right knee diagnoses, including a medial meniscus tear, most likely, with additional chondromalacia of the patella; a probable meniscus tear, rule out bursitis; status post an arthroscopic lateral retinacular release; a contusion; and a scope of the right meniscus. The Board finds the Veteran's reports of right knee problems during and since her period of service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also finds the statements from the Veteran's family members, including her mother, husband, and brother, as well as the statements from S. B., and T. B., which indicate that the Veteran complained of right knee problems when she returned from the military, to be credible. Resolving any doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right knee disability commenced during her period of service. In light of the evidence, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a right knee disability. Therefore, service connection for a right knee disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.