Citation Nr: 21066350 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-41 371 DATE: October 29, 2021 ORDER Entitlement to service connection for lumbar spine degenerative spondylosis (lumbar spine disability) is granted. Entitlement to service connection for right knee disability is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability was related to service. 2. The Veteran's right knee disability did not have its onset in service, within the one year presumptive period, and was not otherwise related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. He died in April 2014 and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, among one other thing, denied reopening the claim for service connection for right knee disability, denied service connection for lumbar spine disability, and denied TDIU. In February 2009, the Veteran filed his notice of disagreement, was issued a statement of the case in May 2010, and in June 2010 perfected his appeal to the Board. In a December 2013 decision, the Board, among one other thing, reopened the Veteran's claim for service connection of right knee disability, and remanded the claims for service connection for right knee disability, lumbar spine disability, and the Veteran's claim for TDIU for further development. As previously noted, the Veteran died in April 2014, and in March 2018, the appellant was granted substitution as the surviving spouse of the Veteran. In a July 2018 decision, the Board, inter alia, remanded the claims for right knee disability, lumbar spine disability, and TDIU, for further development as outlined by the previous Board decision. In April 2020, the RO, among other things, continued the denial of the claims for service connection for lumbar spine disability, right knee disability, and TDIU, notifying the appellant in a supplemental statement of the case. In June 2021, the Board, among other things, again remanded the appellant's claims for service connection for lumbar spine disability, right knee disability, and TDIU for new VA medical opinions. In September 2021, the RO denied the appellant's claims for service connection for lumbar spine disability, right knee disability, and TDIU, notifying the appellant in a supplemental statement of the case. For the reasons indicated in the discussion below, the opinions that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claims on appeal. Thus, the AOJ complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). 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). Certain chronic diseases, including osteoarthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Right Knee and Lumbar Spine Disability The Veteran's DD-214 reflects that his military occupational specialty was as an indirect fire infantryman. January 1969 service treatment records reflect that the Veteran complained of pain in the trapezius muscles, and x-rays showed a slight upper thoracic scoliosis. The Veteran's April 1970 medical examination report upon separation from service does not reflect any abnormalities regarding his right knee or back, and his April 1970 medical history report does not indicate that the Veteran has any knee or back issues. In an August 1994 medical report, the Veteran reported that he had generalized joint pain, mainly in his knees. July 1995 post-service treatment records reflect that the Veteran complained of back pain. He reported that he suffers from "strong back pain." A March 1999 VA examination report reflects diagnoses of degenerative spondylosis of the lumbar spine, and degenerative osteoarthritis of the knees. A January 2008 private treatment record indicates that the Veteran's right knee MRI reflects degenerative changes and medial meniscal tear. In an October 2008 letter, the Veteran's private physician stated that the Veteran suffers from stiffness and severe low back pain which limits his daily functions, including exercising, getting dressed, bathing, and removing his shoes. The physician noted that the Veteran has slow ambulation with the help of a cane, and spends most of the day in bed. The physician reported that the Veteran's back condition started presenting during his military service, and concluded that the Veteran's condition is more probable than not caused by his back problem secondary to his duties during service. October 2013 VA treatment records indicate that Veteran was receiving treatment for bilateral knee osteoarthritis. December 2013 VA treatment records reflect that the Veteran was treated for low back pain. In a January 2019 VA examination addendum, the physician opined that the Veteran's lumbar spine disability is not related to service, to include as due to prolonged carrying of heavy military equipment. He stated that the minimal degenerative changes at the L5-S1 facet joints in 2008 are not proximately incurred in, caused by, or aggravated by service. In a July 2021 VA examination addendum, the physician opined that the Veteran's lumbar spine disability was less likely than not (less than a 50 percent probability) caused by, or the result of service, stating that there is no evidence in the medical records to suggest a direct nexus of causality between military service injuries to the present actual lumbar condition. The physician reported that lumbar spondylosis is a chronic condition that tends to progressively worsen over time with the natural aging process, and/or due to repetitive trauma. He also stated that lumbar conditions are more likely than not caused by age, obesity, and occupational history, all of which predispose to developed lumbar spine degenerative disc disease/degenerative joint disease, and that there is significant evidence on medical literature supporting the fact that actual lumbar condition is considered part of the normal aging process in patients older than 40 years old. The physician noted that the current lumbar disability was diagnosed several years after service, and that there is no evidence of continuity of treatment at least within 5 years after separation from service. The physician also opined that the Veteran's right knee disability is less likely than not (less than a 50 percent probability) caused by, or the result of military service, stating that there was no objective evidence that the Veteran required treatment for his right knee disability at least 5 years after service, and noting that it was incurred/diagnosed several years after service. The physician reported that medical literature supports the fact that knee osteoarthritis is considered part of the normal aging process in patients over 40 years old. In an August 2021 addendum opinion, the physician opined that the Veteran's lumbar spine disability is less likely than not caused by, or a result of military service, noting that the Veteran's separation examination is silent for a back condition, and that spondylosis is one of the most common causes of spine pain that affects people over 50. He stated that everyday wear and tear damages the spinal joints, and noted that there is no evidence that the Veteran sought medical care for the condition at least within 5 years after separation from service. The physician reported that the Veteran's lumbar disability was diagnosed 29 years after service and after he retired from a physical demanding job which made the Veteran prone to suffer from discogenic disease and spondylosis. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability is related to service. The March 1999 VA examination report reflects that the Veteran has a diagnosis of lumbar spine degenerative spondylosis, and the Veteran has competently and credibly asserted that he had to endure carrying heavy military equipment during service which caused his low back pain, and is an activity consistent with the circumstances of the Veteran's service as an indirect fire infantryman. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Therefore, the first two requirements for service connection have been satisfied. As for the nexus requirement, in the January 2019, July 2021, and August 2021 examination addendums, the physicians opined that the Veteran's lumbar spine disability was less likely than not (less than a 50 percent probability) caused by, or a result of service. However, in addition to noting factors such as aging and repetitive trauma which could have contributed to the Veteran's lumbar spine disability, the physicians also based their opinions on a lack of complaints of, or treatment for back pain or injuries during service, or for many years after service which is an impermissible basis upon which to find that a lumbar spine disability is not related to service. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The October 2008 private physician alternately opined that the Veteran's lumbar spine disability was more probable than not caused by his duties during service. While the private physician's rationale was not extensive, reading her opinion as a whole and in the context of the evidence of record, she found that the nature of the Veteran's military service, events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his lumbar spine disability. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (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). The October 2008 private physician's opinion is thus afforded significant probative weight. The evidence is thus at least evenly balanced as to whether the Veteran's lumbar spine disability is related to 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 lumbar spine disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. However, for the following reasons, service connection for right knee disability is not warranted. Initially, there is no indication in the evidence of record, to include the Veteran's VA treatment records or lay statements that the Veteran had right knee osteoarthritis or symptomatology in service or within the one year presumptive period. Cf. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). Therefore, service connection on a presumptive basis as a chronic disease is not warranted. The previously discussed July 2021 examination addendum reflects that the physician opined that the Veteran's right knee disability was less likely than not (less than a 50 percent probability) related to service, and provided a thorough rationale to support his opinion based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Therefore, the July 2021 physician's opinion is afforded significant probative weight. There is no contrary opinion of record regarding the etiology of the Veteran's right knee disability. Moreover, the Veteran did not indicate, and the evidence of record does not otherwise suggest, that he experienced continuous right knee disability symptomatology in and since service. Therefore, neither the lay nor medical evidence suggests that the Veteran had a right knee disability that manifested in service and has continued since service, or is otherwise related to service. The Board acknowledges the appellant's contention that the Veteran's right knee disability was due to service. While the appellant is competent to provide testimony or statements relating to symptoms or facts of events that she has observed and are within the realm of her personal knowledge, she is not competent to testify as to complex medical questions such as the nature and etiology of the Veteran's right knee disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The appellant's assertions in this regard are therefore not competent. For the foregoing reasons, entitlement to service connection for a right knee disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND TDIU The Veteran's VA 21-8940 application reflects that he completed 4 years of high school, previously worked in construction, and became too disabled to work in 1982 due to his back and knee disabilities. In his February 1995 Social Security Administration request for reconsideration, the Veteran reported that he was 100 percent disabled due to his conditions. He reported that he was unable to take care of his personal needs due to his conditions, stating that he needed help with bathing, dressing, combing his hair, and tying his shoes, among other things. As the RO's implementation of the Board's grant of service connection for lumbar spine disability contained herein could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, a remand of the claim for TDIU is required. The matter is thus REMANDED for the following action: After implementing the grant of service connection for lumbar spine disability and assigning an initial rating, adjudicate the claim for a TDIU. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.