Citation Nr: 21067234 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-27 524 DATE: November 3, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disease is granted. Entitlement to service connection for left knee degenerative arthritis is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current lumbar spine degenerative disease is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's current left knee degenerative arthritis is related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for lumbar spine degenerative disease have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left knee degenerative arthritis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from October 1987 to March 1988 and additional periods of service in the Army National Guard until April 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied service connection for the disabilities listed on the title page. In February 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 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, air, or space service. 38 U.S.C. § 1131; 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). As relevant, the term "active military, naval, air, or space service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for disability resulting from disease or injury incurred while performing ACDUTRA and for disability resulting from injury or the specified cardiac or cerebrovascular events incurred while performing INACDUTRA. Id. ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes." 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). The term INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of the title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). The Veteran is service-connected for posttraumatic stress disorder (PTSD) based upon her October 1987 to March 1988 ACDUTRA period of service and thus establishes Veteran status. Hill v. McDonald, 28 Vet. App. 243, 251 (2016). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary must give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Lumbar spine Service treatment records (STRs) appear incomplete since there are no records concerning the Veteran's ACDUTRA period from October 1987 to March 1988. In instances of incomplete STRs, VA must employ heightened consideration of the benefit-of-the-doubt standard and rely on the competent and credible reports of medical history and symptoms. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). December 1993 Report of Medical Examination showed that lumbar spasm was found without palpable or observable deformity. The clinician assessed low back pain probably musculoskeletal. The accompanying Report of Medical History showed that the Veteran denied recurrent back pain. December 2010 private magnetic resonance imaging (MRI) study confirmed degenerative changes at L4 and L5 with apparent right sided disc protrusion. July 2012 medical records showed that the Veteran had a low back injury approximately nine months ago. The Veteran also described a gradual onset of back pain with a persistent pattern. The clinician assessed back pain with bulging disc. In March 2020, the Veteran had a VA-contract back condition examination with a physician. The physician diagnosed lumbosacral strain with a 1987 onset. The Veteran reported that she injured her back while running on an obstacle course during her 1987 ACDUTRA. Currently, she experienced constant low back. Physical findings were reported in detail. No radiculopathy was reported for either lower extremity. The physician furnished a negative medical opinion. He acknowledged that the Veteran developed low back pain during 1987 basic training exercises and that the low back pain continued to bother her. However, her December 1993 Report of Medical History indicated no back pain. Although the Veteran provided a "strong history" compatible with a basic training injury, there were no corroborating medical records. At the February 2021 Board hearing, the Veteran stated that she injured her back while performing physical exercises during basic training. She had had back pain ever since then. She tried a variety of pain relief treatments. She stated that a treating provider linked her current back pain to service. In February 2021, Dr. H issued a letter in support of the claim. He was qualified as an orthopedist. He physically examined the Veteran. He reviewed military records from 1993 and 1995 and well as additional medical records. Physical examination and imaging studies showed findings consistent with chronic low back pain. Based upon his review and physical examination, he opined that the Veteran's lumbar degenerative disease was related to military service. For the following reasons, service connection for lumbar spine degenerative disease is warranted. The disputed issue is whether there is a relationship between service and the currently diagnosed lumbar degenerative disease. The Veteran is competent to report about her physical activities in service and history of back pain since it is readily observable. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). At the March 2020 VA-contract back condition examination and the February 2021 Board hearing, the Veteran related the onset of her back pain to exertive injury sustained during her October 1987 to March 1988 ACDUTRA period. This account is supported by December 1993 service records noting lumbar spasms and December 2010 lumbar spine MRI report confirming degenerative changes. However, it conflicts with the December 1993 Report of Medical History denying recurrent back pain and July 2012 medical records relating back pain to recent injury. By viewing the record in its entirety and considering the heightened obligation to consider the lay reports due to incomplete STRs, the Veteran's reports are probative to suggest continuous symptoms beginning in service for low back pain despite the presence of some conflicting evidence. The March 2020 VA-contract medical opinion weighs against the claim. The VA-contract physician primarily relied on the absence of treatment or report in STRs to support his negative determination. However, he indicated the Veteran was credible in her reports about low back pain symptoms starting in service. In-service medical treatment is not required to establish a relationship to service and cannot by itself be used to reject the Veteran's reports about continuous symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board does not find the March 2020 VA medical opinion persuasive due to its inadequate rationale. The February 2021 letter from Dr. H supports the claim. Although he does not refer to a specific ACDUTRA injury, his letter generally indicates that he found the Veteran credible in her report of medical history and that the current clinical findings were consistent with an exertive type back injury from her history of service many years ago. It is probative corroborating medical evidence to show a relationship to exertive injury sustained during October 1987 to March 1988 ACDUTRA. For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's lumbar spine degenerative disease is related to service. Id. at 1335. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for lumbar spine degenerative disease. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Left knee disability Again, STRs appear incomplete since there are no records concerning the Veteran's ACDUTRA period from October 1987 to March 1988. In instances of incomplete STRs, VA must employ heightened consideration of the benefit-of-the-doubt standard and rely on the competent and credible reports of medical history and symptoms. See Cuevas, 3 Vet. App. at 548; O'Hare, 1 Vet. App. 367. December 1993 physical examination showed that the Veteran's left knee had mild crepitus with movement. The clinician assessed chondromalacia, left knee. The accompanying Report of Medical History was blank for whether a trick or locked knee was reported. The clinician noted that the Veteran had a history of knee problems since basic training with illegible handwritten comments. June 1995 service records reported that the Veteran sought medical attention for left knee pain. The clinician's notes refer to a muscular contusion. The Veteran received an individual sick slip for the knee injury. She was instructed to return to the barracks and elevate her knee. October 1995 service records showed that the Veteran again received an individual sick slip for a left knee disability. The clinician reported that the Veteran developed chronic left knee pain after running a mile due to an old injury. She was instructed to run at her own pace for the current physical training. December 2016 bilateral knee X-rays were taken for chronic right knee pain. It revealed minimal to mild osteoarthritis. In March 2020, the Veteran had a VA-contract knee examination with a physician. He diagnosed degenerative arthritis affecting both knees. The Veteran reported that in 1987 she developed left knee pain with activity. It had worsened since then. Physical findings were reported in detail for both knees. The physician furnished a negative medical opinion. He noted the Veteran's report about developing left knee pain during 1987 basic training while running through an obstacle course. It had continued since then. Although the Veteran provided a "strong history" compatible with a basic training injury, there were no corroborating medical records. At the February 2021 Board hearing, the Veteran reported that her left knee pain had its onset during basic training. She received a light duty excuse because of it. She affirmed that she had had continuous left knee symptoms since the basic training injury. In February 2021, Dr. H issued a letter in support of the claim. He was qualified as an orthopedist. He physically examined the Veteran. He reviewed military records from 1993 and 1995 and well as additional medical records. He reported that the Veteran had advanced left knee arthritis. She tried several treatments without success. Based upon his review and physical examination, he opined that the Veteran's left knee arthritis was related to service. For the following reasons, service connection for left knee degenerative arthritis is warranted. The disputed issue is whether there is a relationship between service and the currently diagnosed left knee degenerative arthritis. The Veteran is competent to report about her physical activities in service and history of left knee pain since it is readily observable. Jandreau, 492 F.3d at 1377 n.4. At the March 2020 VA-contract knee condition examination and the February 2021 Board hearing, the Veteran related the left knee pain onset to exertive injury sustained during her 1987 ACDUTRA period. Service records confirm that the Veteran had occasional left knee pain complaints with activity. In the December 1993 report, she references a basic training injury. The Veteran's reports are probative to suggest continuous symptoms beginning in service for left knee pain. The March 2020 VA-contract medical opinion weighs against the claim. The VA-contract physician primarily relied on the absence of treatment or report in STRs to support his negative determination. However, he indicated the Veteran was credible in her reports about left knee pain starting in service. In-service medical treatment is not required to establish a relationship to service and cannot by itself be used to reject the Veteran's reports about continuous symptoms. Buchanan, 451 F.3d at 1337. With these considerations, the Board does not find the March 2020 VA medical opinion persuasive due to its inadequate rationale. The February 2021 letter from Dr. H supports the claim. Although he does not refer to a specific ACDUTRA injury, his letter generally indicates that he found the Veteran credible in her medical history reports and that the current clinical findings were consistent with an exertive type left knee injury from her history of service many years ago. It is probative corroborating medical evidence to show a relationship to exertive type injury sustained during her October 1987 to March 1988 ACDUTRA period. For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's left knee degenerative arthritis is related to service. See Buchanan, 451 F.3d at 1335. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for left knee degenerative arthritis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for respiratory disorder is remanded. The Veteran's STRs are incomplete. They do not include any STRs from her October 1987 to March 1988 ACDUTRA period. In May 2017, the RO issued a STR request to what appears to include the Record Management Center (RMC) for the Veteran. In June 2017, a Personnel Information Exchange System (PIES) response showed that all available records were sent. The RO has not formally complied a summary of search actions and responses to ensure that October 1987 to March 1988 ACDUTRA STRs were indeed unavailable and that further search efforts would be futile. Furthermore, the Veteran has not been formally notified about the missing October 1987 to March 1988 ACDUTRA STRs. She was not given an opportunity to submit alternative evidence for these claims. Additional development is needed to ensure all STRs search efforts have been exhausted and provide the Veteran notice that her October 1987 to March 1988 ACDUTRA STRs are missing. 38 C.F.R. § 3.159(c)(2), (e). Entitlement to service connection for headaches is remanded. The record does not contain sufficient information for a decision on the claim. At the February 2021 hearing, the Veteran asserted that there was a relationship between service-connected PTSD and the now service-connected orthopedic disabilities and her headaches. 38 C.F.R. § 3.310. Since headaches and psychiatric distress/ pain are readily observable, the Board considers her reports about a possible association competent and credible. However, her reports are not competent to establish a secondary relationship within a reasonable degree of medical certainty. The secondary relationship at issue concerns internal neurological type processes and falls beyond a simple observable link that is within the competence of lay observers. In this case, medical evidence is needed to establish a secondary relationship. Given the above background, a VA medical opinion is needed to ascertain the relationship between service-connected PTSD and headaches. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for a right knee disability is remanded. The Veteran contends her right knee disability is related to her now service-connected left knee disability. Id. The secondary relationship issue requires knowledge of joint stress over time and its effect on a separate joint. Thus, it is a complex medical question beyond a simple observable relationship that is within the competence of lay observers. The March 2020 VA-contract physician furnished a negative medical opinion regarding a secondary relationship. However, he rejected the relationship primarily based on absence of corroborating medical evidence and did not address the aggravation component to secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); 38 C.F.R. § 3.310(b). The Board finds the supporting rationale for the March 2020 medical opinion to be inadequate, and another VA medical opinion is needed as detailed below. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Ensure that appropriate STR requests from all potential record custodians for the Veteran's October 1987 to March 1988 ACDUTRA STRs have been made and are clearly documented in the evidence. Make as many requests as necessary until it is clear that further search efforts would be futile. Document all search efforts. 2. If it becomes apparent that October 1987 to March 1988 ACDUTRA STRs no longer exist or additional search efforts would be futile, prepare a Formal Finding of Unavailability documenting all search actions and responses received with notice to the Veteran and her representative. Allow the Veteran and her representative an opportunity to respond. 3. Then, review any newly generated records and responses from the Veteran to determine if they are relevant to the service connection claims for respiratory disorder. If deemed relevant, consider an appropriate VA examination and medical opinion based upon review of the newly received evidence. 4. Then, contact a physician for a medical opinion for headaches. The claims file and a copy of this Remand must be made available to and reviewed by the physician in conjunction with the examination. The physician is requested to review all pertinent records associated with the claims file and offer an opinion on the following: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's headaches are either (a) caused, or (b) aggravated by her service-connected PTSD, left knee disability and lumbar spine disability. A complete rationale must be given that specifically addresses both the causation and aggravation components of secondary service connection. If aggravation is found, the baseline level of the disability prior to aggravation should be indicated if possible. A complete rationale must be given for any opinion expressed. 5. Contact a physician for a medical opinion for the right knee disability. The claims file and a copy of this Remand must be made available to and reviewed by the physician in conjunction with the examination. The physician is requested to review all pertinent records associated with the claims file and offer an opinion on the following: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right knee disability is either (a) caused, or (b) aggravated by her service-connected left knee disability and/or lumbar spine disability. A complete rationale must be given that specifically addresses both the causation and aggravation components of secondary service connection. If aggravation is found, the baseline level of the disability prior to aggravation should be indicated if possible. A complete rationale must be given for any opinion expressed. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.