Citation Nr: A21016404 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 210819-180515 DATE: October 6, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left knee disability is related to service. 2. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 until January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2020 and May 2021 Department of Veterans Affairs (VA) regional office (RO) rating decisions. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans to seek review on their claims. The Veteran timely selected the direct review lane. Under the AMA, the Board may review only the evidence of record at the time of May 2021 rating decision. The new and material evidence issue regarding all three claims has been recharacterized to reflect the new evidentiary standard under the AMA. Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. In the September 2020 higher level review rating decision, the RO determined that new and relevant evidence was received to warrant readjudicating the claims. The Board is bound by these favorable findings. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. As such, the Board need not address the propriety of readjudicating the claims again and may proceed to the merits. Service Connection Under the relevant laws and regulations, 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, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as osteoarthritis and degenerative disc disease, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. 488, 498 (1997). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a lumbar spine disability The Veteran contends that his left knee and lumbar spine disabilities are related to service. Several post-service treatment records indicate that the Veteran has both a left knee and a lumbar spine disability. For example, an August 2018 private back disability benefits questionnaire diagnoses the Veteran with lumbar disc degeneration, lumbago, and back spasms; a December 2018 VA examination diagnosed the Veteran with left knee arthritis, and an August 2020 private letter diagnosed the Veteran with left knee osteoarthritis. Accordingly, the first Shedden element has been met. The Veteran's DD-214 shows that he is the recipient of a parachutist badge, and his military personnel records verify that he served in Vietnam during war. Additionally, he was treated for low back pain in December 1964. For this reason, the second Shedden element is satisfied. The remaining determination, therefore, is whether there is a nexus between these musculoskeletal disabilities and the Veteran's participation in parachutist jumps. There are conflicting medical opinions as to whether the Veteran's left knee and lumbar spine disabilities are related to service. Against the claims are December 2018 and September 2020 VA examinations. The December 2018 VA examiner reasoned that "there is insufficient evidence to establish any continuity of symptoms" regarding either a left knee or back disability given that the separation examination was silent for such complaints. The September 2020 VA examiner reasoned that this Veteran has left knee and back arthritis because of his age. The examiner explained that the Veteran did not exhibit any evidence of skeletal trauma after his jumps. In favor of the claim is an August 2018 private medical opinion. The private treatment provider opined that the Veteran's disabilities were related to his parachutist experience. Very little rationale was provided on a direct nexus theory. As such, it is provided less probative weight. The August 2018 private examiner, however, additionally stated that the Veteran's left knee disability was related to his back disability as his "altered gait has led to increase weight on left . . . knee subsequent degeneration now." A July 2020 private opinion likewise opined that the Veteran's left knee osteoarthritis and lumbar spine degenerative disc disease are "due to, related to, a progression of, or a continuation of multiple parachute jumps during active duty military service." This examiner explained that the Veteran was presumed sound at entry and that his carrying "heavy loads and weight during his parachuting activities . . . serves as evidence for consideration in relation to an underlying etiology." This examiner also noted the Veteran's numerous lay statements reporting that his musculoskeletal symptoms, including pain, stiffness, and weakness, onset in service and continued thereafter. Based on the above, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's left knee and lumbar spine disabilities are directly related to service. The Board affords probative weight to the July 2020 private opinion that his carrying "heavy loads and weight during his parachuting activities... serves as evidence for consideration in relation to an underlying etiology." The private opinion is well-reasoned and based on the Veteran's service records and current medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This private opinion is also consistent with the credible factual observations of the Veteran as he noticed his left knee and lumbar spine symptoms beginning in service and worsening thereafter. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses). The Board is aware that the December 2018 and September 2020 VA examiners provided negative etiological opinions. However, the Board assigns less probative weight to this evidence. Specifically, the Board notes that these VA examinations do not contain an explanation as to why the Veteran's statements regarding his onset and persistence of knee and back pain were being discounted. Miller v. Wilkie, 32 Vet. App. 249 (2020). Weighing the positive findings of the July 2020 private opinion and the Veteran's lay statements, against the December 2018 and September 2020 VA examinations, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's left knee and lumbar spine disabilities are related to service. Accordingly, and resolving all doubt in favor of the Veteran, the Board finds that service connection for a left knee and lumbar spine disability are warranted on a direct basis. 38 U.S.C. § 5107. And as such, further discussion of any other theory of entitlement, to include whether the Veteran's left knee disability is secondarily related to his back disability (per the August 2018 private DBQ), is therefore not warranted. The nature and extent of these disabilities are not before the Board at this time. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, Associate 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.