Citation Nr: 21068531 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-21 148 DATE: November 10, 2021 ORDER Entitlement to service connection for a right knee disorder is granted. Entitlement to service connection for a lumbar spine disorder is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his right knee disorder is at least as likely as not related to active-duty service. 2. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disorder is at least as likely as not related to active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1988 to July 2008. His awards and decorations include a Combat Infantry Badge. These matters are on appeal from a September 2014 rating decision. In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the record. In April 2019, and again in May 2021, these matters were remanded by the Board for further development. Service Connection Right Knee Strain and Lumbar Spine Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that the evidence in favor and against the Veteran's claims for service connection for a right knee and lumbar spine disorder to be at least in equipoise. In so finding, the Board notes that the Veteran contends, in part, that multiple parachute jumps injured his right knee and lumbar spine. The Veteran's DD 214 reflects he was awarded the Combat Infantryman Badge, Ranger Tab, and Parachute Badge, supporting his assertion. Further, the Veteran's service treatment notes include an April 2007 report of patellofemoral syndrome and a comment from the treating family nurse practitioner that the Veteran had chronic bilateral knee pain and intermittent low back pain "from years of PT and infantry training missions." The Veteran reports continuous symptoms since service. In November 2018, the Veteran testified before the Board, describing multiple parachute jumps, four of which were hard landings. He further described lots of running and road marches with heavy rucksacks. He explained that he did not complain about his pain often in service but that he experienced it. The Veteran's wife testified that she met the Veteran in 1998 and had observed his knee and back pain. Additionally, the evidence of record includes January and November 2014 statements from W.C., a physician's assistant, who noted that the Veteran had right knee and lumbar spine disorders which were related to his numerous airborne jumps. In his November 2014 statement in support of the Veteran's claim, W.C. stated that he had reviewed the Veteran's service treatment records and noted that they included lower back and right knee complaints. He explained that it was a known fact that combat gear increased stress to weight bearing joints and may accelerate the aging process, and that in addition to those stresses, the Veteran's specific duties on active duty placed enormous amounts of stress on the lower back and knees. He stated that after careful and thoughtful review of the evidence, it was possible to determine that the Veteran's back and knee pain began in active duty, was chronic in nature and related to his current back and knee diagnoses. The Veteran was afforded examinations in August 2014 and April 2015. The Board determined that these examinations were inadequate and remanded the issues for additional findings in April 2019. Medical opinions regarding the Veteran's lumbar spine and right knee disorders were again provided in November 2019 and July 2020. However, the Board found those opinions inadequate as well as they failed to consider the Veteran's credible reports of chronicity and in-service symptoms, and the Board remanded the appeal for additional findings in May 2021. A new medical opinion was provided in June 2021, however, again, the examiner failed to adequately address the Veteran's credible reports of right knee and back symptoms in service and thereafter. It is clear, then, that multiple attempts to further develop the Veteran's claim have failed and the Board finds that to remand yet again would only serve to delay adjudication. As such, the negative opinions resulting from the inadequate examinations described above are given little probative weight as they fail to adequately address the Veteran's claims. The Board finds persuasive 1) the Veteran's service treatment records and service consistent with the claimed injuries 2) the Veteran's statements of continuous right knee and back symptoms, and 3) the findings of W.C that the Veteran's right knee and lumbar spine symptoms are related to his service. Even when considered alongside evidence against the Veteran's claim, the negative findings of the VA and contract examiners, given that those findings are afforded limited weight due to a failure to properly consider the totality of the evidence, the evidence is at least in equipoise and service connection for a right knee and lumbar spine disorder is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.