Citation Nr: 21066137 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-41 077 DATE: October 28, 2021 ORDER Entitlement to service connection for left knee disability, to include arthritis, is granted. Entitlement to service connection for right knee disability, to include arthritis, is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for bilateral shin splints is remanded. FINDING OF FACT The Veteran's left and right knee disabilities, to include arthritis, were incurred during his active-duty military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1974 to August 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran provided testimony at a hearing before the undersigned Veteran's Law Judge in August 2020; a transcript has been associated with the file. This matter was remanded in December 2020 for additional development, including VA examinations and medical opinions. As regards the Veteran's knee disabilities, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). However, remand for service connection for the Veteran's lower back disability, shin splints, and IBS is warranted. The Board has recharacterized the issue with regard to a claim of service connection for a "bilateral leg condition." At the August 2020 hearing, the Veteran testified that he has had pain in his lower legs since service, in both his knees and his shins. The case was remanded for a new VA examination to identify the nature and etiology of all lower extremity disabilities, and provide a medical opinion as to the nexus of those disabilities. At the May 2021 VA examination, the Veteran was diagnosed with two lower extremity disabilities - bilateral knee arthritis and shin splints. Accordingly, the Board will consider whether service connection is warranted for each diagnosed disability. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112 (a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is considered a "chronic disease" that is among the listed conditions. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. First, the Board finds that the Veteran has been diagnosed with arthritis of both knees, as well as tendinitis, satisfying the requirement of a current disability. The Veteran contends that he has suffered progressively worsening bilateral knee pain and instability in and since service. He reports that he sought treatment during service, and doctors instructed him on home treatments for his knee symptoms. After service, he continued to treat his knee pain with home remedies and over-the-counter medications. The Veteran testified that for a period of time post-service, he did not have health insurance or access to medical care. Service treatment records (STRs) document that the Veteran sought treatment for bilateral knee and tibia pain in December 1975. The Veteran was diagnosed with "jumper's knee" and prescribed aspirin. At the June 1977 separation examination, the Veteran's lower extremities were normal. The Veteran subjectively reported being in good health. Post-service VA treatment records show that the Veteran has complained of bilateral knee pain and instability since at least June 2016. An August 2018 X-ray showed mild to moderate arthritis with chondrocalcinosis and quadricep tendon calcification in both knees. At the November 2015 VA examination, the Veteran described suffering knee pain, swelling and instability for a "long time," even before an August 2015 right knee injury. The examiner diagnosed the Veteran with left knee strain, bilateral shin splints and right knee chondrocalcinosis. The examiner concluded that the Veteran's current knee problems were not consistent with "jumper's knee." The examiner offered no additional rationale. At the May 2021 VA examination, the examiner noted that the Veteran had been diagnosed with bilateral arthritis of the knees, status post right knee quadricep tendon repair and bilateral tendinitis. The Veteran reported having problems with his knees since he was on active duty at Fort Sill, and that his knee pain has continued since that time. The May 2021 VA examiner concluded that the Veteran's bilateral arthritis was related to his patellar tendinitis, based on treatment records and the Veteran's statements. In evaluating the evidence of record, the Board gives the November 2015 VA opinion minimal probative weight. The November 2015 examiner failed to account for the Veteran's statements describing the onset, course and character of his knee pain and instability, especially as regards the distinction between his August 2015 acute right knee injury and his bilateral knee pain. The Board finds that the Veteran is competent to report the nature, onset, and course of his knee pain, as well as the effect of these knee symptoms on his ability to function. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Although the Veteran's post-service treatment records document post-service knee injuries, he has consistently differentiated between his acute (right) knee pain and his chronic knee pain that he states started while he was on active-duty service. These reports are consistent with the evidence of record as described above, including medical imaging and service treatment records. The Board gives his statements significant probative weight. The Board finds the May 2021 opinion persuasive, as the examiner accounted for the Veteran's competent and credible statements regarding the onset and course of his knee pain and instability as well as the "chronicity of care" (both professional and self-treatment) in and since service for bilateral knee pain. Accordingly, the Board gives this opinion substantial probative weight. Overall, the Board finds that the preponderance of the evidence supports a grant of service connection for left and right knee disabilities, to include arthritis. The Veteran has competently and credibly reported ongoing bilateral knee pain in and since service. Service treatment records corroborate his statements. Medical imaging confirms bilateral arthritis, and the May 2021 VA examiner concluded that the Veteran's in-service tendinitis was related to his current arthritis diagnosis. Therefore, service connection for left and right knee disabilities, to include arthritis, is warranted. REASONS FOR REMAND Low Back Disability In the December 2020 remand, the Board found that the Veteran was competent to report the onset and nature of his back pain. At the August 2020 hearing, the Veteran testified that he had experienced back pain since service, and had been diagnosed with arthritis in his back. He testified that his back pain had not been caused by a specific incident, but had developed after heavy use in training, especially practicing rappelling from heights. At the May 2021 VA examination, the VA examiner noted that the Veteran had been diagnosed with degenerative arthritis of the spine in 2016. The VA examiner concluded that it was less likely than not that the Veteran's arthritis was caused by or incurred in his military service, as he was not treated for back pain during service and had not received treatment since service. She characterized the 2016 X-ray findings as "incidental." This opinion is inadequate, as the examiner failed to account for the Veteran's statements regarding the onset and continuity of back pain in and since service. Consequently, a new opinion is required. Bilateral Shin Splints The December 2020 Board remand directed the examiner to address the nature and etiology of the Veteran's bilateral shin splints. The November 2015 VA examiner diagnosed the Veteran with chronic bilateral shin splints. The Veteran has consistently reported pain in his shins that began in service and has continued since. He described treating this condition himself using home remedies and over the counter medication. The Board specifically directed the examiner to discuss the Veteran's in-service reports of tibial pain and his continuous pain since service. The May 2021 examiner rendered a negative nexus opinion, concluding that there was no diagnosis for chronic shin splints. She did not discuss the Veteran's in-service report of tibial pain. She failed to address the Veteran's reports of shin pain beginning in and continuing since service, and based her opinion on the inaccurate factual premise that the Veteran has not been diagnosed with shin splints. The Board notes, as it did in its December 2020 order, that the November 2015 VA examiner diagnosed the Veteran with chronic bilateral shin splints. A "current" disability exists if a diagnosis was warranted ant any time during the appeal period, even if now resolved. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As a result, the opinion is inadequate, and remand is required. Irritable Bowel Syndrome As described in the December 2020 remand order, the Veteran has consistently reported multiple digestive problems in and since service, including constipation and diarrhea. He was diagnosed with IBS in 2016. The May 2021 examiner concluded that since the Veteran was not diagnosed with IBS until after his military service, it was not related to or incurred during service. She also provided an opinion regarding aggravation of a condition that existed prior to service, although the Veteran does not contend, and the record does not indicate, that the Veteran's digestive problems pre-dated his military service. The May 2021 nexus opinion as to direct service connection is inadequate, and a remand is required. The examiner failed to account for the Veteran's description of digestive symptoms in and since service. Additionally, lack of in-service treatment alone is not a sufficient rationale. Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, a new opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum nexus opinion from a VA examiner regarding the Veteran's degenerative arthritis and lumbosacral strain. The complete claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. For each identified condition, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater) caused or aggravated by service. The examiner must consider the entire claims file, including the Veteran's statements regarding the nature and onset of his lower back pain. The reviewer's attention is directed to the Veteran's August 2020 testimony. The examiner must also opine as to whether it is at least as likely as not that the Veteran's back conditions were proximately caused or aggravated by any of his other service-connected disabilities, including his bilateral foot and knee disabilities. A full and complete rationale is required for all opinions. 2. Obtain an addendum nexus opinion from a VA examiner regarding the Veteran's diagnosed bilateral shin splints. The complete claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. The reviewer must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral shin splints were caused or aggravated by active-duty military service. The examiner must specifically consider and comment upon the Veteran's description of the nature, onset, and duration of his shin symptoms. The examiner must also opine as to whether it is at least as likely as not that the Veteran's bilateral shin splints were caused or aggravated by a service-connected disability, including his bilateral foot and knee disabilities. A full and complete rationale is required for all opinions. 3. Obtain an addendum nexus opinion from a VA examiner regarding the Veteran's diagnosed IBS. The complete claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. The reviewer must opine as to whether it is at least as likely as not (50 percent probability or greater) that IBS was incurred in or caused by active-duty military service. The examiner must specifically consider and comment upon the Veteran's description of the nature, onset, and duration of his digestive symptoms, to include constipation and diarrhea. The examiner must also opine as to whether it is at least as likely as not that IBS was proximately caused or aggravated by any of his other service-connected disabilities, including gastritis or medication taken to treat his service-connected knee or foot disabilities. A full and complete rationale is required for all opinions. 4. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.