Citation Nr: 21066527 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-20 906 DATE: November 1, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease is granted. Entitlement to service connection for lumbar spine degenerative disc disease is granted. Entitlement to service connection for left knee arthritis with total left knee replacement is granted. REMANDED Entitlement to service connection for radiculopathy of the left upper extremity is remanded. Entitlement to service connection for radiculopathy of the right upper extremity is remanded. Entitlement to service connection for radiculopathy of the left lower extremity is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. Entitlement to service connection for right knee arthritis with chondromalacia is remanded. Entitlement to service connection for a right shoulder strain is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's cervical spine degenerative was incurred during military service. 2. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spine degenerative was incurred during military service. 3. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's left knee arthritis with total left knee replacement was incurred during military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for left knee arthritis with total left knee replacement have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to April 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical examination is inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to report his symptoms, as a layman; however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for cervical spine degenerative disc disease 2. Entitlement to service connection for lumbar spine degenerative disc disease The Veteran claims that his hard falls while serving as a paratrooper during his active-duty service caused his neck and back disabilities. A condition precedent for establishing service connection is the presence of a current disability. In this regard, the Board notes that the Veteran has been diagnosed with and treated for cervical spine and lumbar spine degenerative disc disease, according to August 2015 VA examinations and a recent private medical opinion from August 2021. Therefore, the first element necessary to establish service connection for cervical spine and lumbar spine degenerative disease have been met. As to an in-service incurrence, the Board observes that the Veteran's service treatment records (STRs) note numerous complaints of neck and back pain. Therefore, the Board finds that the second element necessary to establish service connection for cervical spine and lumbar spine degenerative disc disease have been met. The remaining issue is whether the currently diagnosed cervical spine and lumbar spine degenerative disc disease are related to the in-service injuries. The July 2015 VA examine concluded that the Veteran's neck and back disabilities are less likely than not related to service since there was no record of neck or back pain in service, and that she cannot opine further without resorting to mere speculation. The Board finds that this opinion is in error, as there was noted in-service neck and back pain. The Veteran submitted a private opinion from August 2021. The private physician opined that, within reasonable medical certainty, the Veteran's lumbar spine and cervical spine disc disease, left knee arthritis, and radiculopathy of the bilateral upper and bilateral lower extremities were caused by the cumulative trauma of high impact parachute landings. The Board finds that this private medical opinion is highly probative because it is based on a thorough review of the record, it contains details of the Veteran's history and in-service experiences, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for cervical spine and lumbar spine degenerative disc disease is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Entitlement to service connection for a total left knee replacement The Veteran claims that his hard falls while serving as a paratrooper during his active-duty service caused his left knee arthritis that led to his total knee replacement. A condition precedent for establishing service connection is the presence of a current disability. In this regard, the Board notes that the Veteran has been diagnosed with and treated for left knee arthritis that resulted in a total left knee replacement, according to an August 2015 VA examination. Therefore, the first element necessary to establish service connection for a total left knee replacement has been met. During the Veteran's August 1970 service evaluations for medical clearance to enter active duty, clinicians noted his previous left knee meniscal tear from September 1967. According to the notes, the Veteran had a surgery to repair the ligaments and had cartilage removed in September 1967, with subsequent pre-service injuries to the left knee noted in December 1968. As a result, the presumption of soundness with respect to the left knee does not apply. Therefore, the issue before VA is one of service aggravation concerning the left ankle under 38 U.S.C. § 1111. The presumption of aggravation applies when a pre-service disability increases in severity during service. 38 U.S.C. § 1153; Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.306(a). To show aggravation, the evidence must demonstrate that the underlying condition of the pre-existing disease, and not merely its outward symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The presumption of aggravation is inappropriate in cases where the evidence shows that an increased disability is the result of the natural progress of the disease. 38 U.S.C. § 1153; Beverly, 9 Vet. App. at 405; 38 C.F.R. § 3.306(a). Only evidence that meets an onerous "clear and unmistakable" standard can rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). The July 2015 VA examiner concluded that the Veteran's left knee disability was less likely than not related to service since there was no record of knee pain in service, and that she cannot opine further without resorting to mere speculation. The Board finds that this opinion seemingly ignores the Veteran's lay statements regarding his in-service knee pain, as it was not addressed. The Veteran submitted a private opinion from August 2021. The private physician opined that, within reasonable medical certainty, the Veteran's left knee arthritis was caused by the cumulative trauma of high impact parachute landings. The Board shall interpret this opinion as meaning that the Veteran's left knee was aggravated by his in-service injuries. The Board finds that this private medical opinion is highly probative because it is based on a thorough review of the record, it contains details of the Veteran's history and in-service experiences, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). In this case, the Veteran had a pre-existing left knee disability, as noted in a service examination just prior to entry in August 1970, and he experienced aggravation of the disability due to the cumulative trauma of high impact parachute landings, according to a private physician's opinion from August 2021. The Board further notes that the Veteran credibly testified to a continuity of symptoms since service, that his credible statements of re-injury in service are sufficient to apply the presumption of aggravation, and that the VA opinion does not constitute clear and unmistakable evidence to rebut the presumption of aggravation. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for left knee arthritis with total left knee replacement is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for radiculopathy of the left upper extremity is remanded. 2. Entitlement to service connection for radiculopathy of the right upper extremity is remanded. 3. Entitlement to service connection for radiculopathy of the left lower extremity is remanded. 4. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. The Veteran contends that his lumbar spine and cervical spine caused his radiculopathy of his bilateral upper and bilateral lower extremities. During July 2015 VA examinations, the VA examiner stated that the Veteran did not have radiculopathy of the bilateral upper and bilateral lower extremities. The RO denied service connection in an August 2015 rating decision based on this finding. However, the Board notes that a treatment record from April 2017 notes that the Veteran's muscle groups are affected by radiculopathy in the upper extremities. The Veteran also credibly testified that he began experiencing a tingling sensation in his thighs and later, his fingers, which has gotten progressively worse. Additionally, the Veteran submitted a private opinion from August 2021 in which the Veteran's private physician opined that, within reasonable medical certainty, the Veteran's radiculopathy of the bilateral upper and bilateral lower extremities was caused by the cumulative trauma of high impact parachute landings. As the evidence of record suggests that the Veteran has a disability that could be related to service or a service-connected disability, the Board finds that a medical examination with a nexus opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination to determine the nature and etiology of the Veteran's radiculopathy of the bilateral upper and bilateral lower extremities. 5. Entitlement to service connection for right knee arthritis with chondromalacia is remanded. 6. Entitlement to service connection for a right shoulder strain is remanded. The Veteran contends that his hard falls while serving as a paratrooper during his active-duty service caused his right knee and right shoulder disabilities. During July 2015 VA examinations, the VA examiner diagnosed the Veteran with a right shoulder strain and right knee arthritis with chondromalacia. During the VA examination, the Veteran reported a right shoulder injury and knee injuries in 1971 due to his service as a paratrooper. The July 2015 VA examiner concluded that the Veteran's right shoulder and right knee disabilities were less likely than not related to service since there was no record of knee or shoulder pain in service, and that she cannot opine further without resorting to mere speculation. The Board finds that this opinion seemingly ignores the Veteran's lay statements regarding his in-service knee and shoulder injuries, as they were not addressed. The examiner also did not have the opportunity to consider whether the Veteran's right knee disorder caused or aggravated the Veteran's right knee disorder. In addition, the Veteran's private examiner did not provide an etiological opinion with respect to the Veteran's right shoulder and knee disorders. As the evidence of record suggests that the Veteran has a disability that could be related to service or a service-connected disability, the Board finds that a medical examination with a nexus opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination to determine the nature and etiology of the Veteran's right shoulder strain and right knee arthritis with chondromalacia. The matters are REMANDED for the following action: 1. Schedule a VA examination with a new examiner who has appropriate expertise to determine the nature and etiology of the Veteran's radiculopathy of the bilateral upper and bilateral lower extremities. The examiner should review the Veteran's claims file. Based on a review of the record and examination, the examiner must address: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's radiculopathy of the upper extremities was caused by the Veteran's active-duty service. b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's radiculopathy of the upper extremities was caused by his newly service-connected cervical spine degenerative disc disease. c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's radiculopathy of the lower extremities was caused by the Veteran's active-duty service. d) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's radiculopathy of the lower extremities was caused by his newly service-connected lumbar spine degenerative disc disease. 2. Schedule a VA examination with a new examiner who has appropriate expertise to determine the nature and etiology of the Veteran's right shoulder disability. The examiner should review the Veteran's claims file. Based on a review of the record and examination, the examiner must address: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder disability was caused by the Veteran's active-duty service. b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder disability is related to, or aggravated by, a service-connected disability. 3. Schedule a VA examination with a new examiner who has appropriate expertise to determine the nature and etiology of the Veteran's right knee disability. The examiner should review the Veteran's claims file. Based on a review of the record and examination, the examiner must address: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability was caused by the Veteran's active-duty service. b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability is related to, or aggravated by, a service-connected disability, to include his now service-connected left knee disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history due to his in-service injury with continued symptoms to the present. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.