Citation Nr: 21068592 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-25 182 DATE: November 10, 2021 ORDER Entitlement to service connection for degenerative disc disease (DDD)/degenerative joint disease (DJD) of the thoracolumbar spine is granted. Entitlement to service connection for DJD of the cervical spine is granted. Entitlement to service connection for left knee arthritis is granted. REMANDED Entitlement to service connection for left ankle arthritis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his back disability is at least as likely as not related to active service. 2. Resolving reasonable doubt in favor of the Veteran, his cervical spine disability is at least as likely as not related to active service. 3. Resolving reasonable doubt in favor of the Veteran, his left knee arthritis is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for back disability have been met. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for cervical spine disability have been met. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 3. The criteria for entitlement to service connection for left knee arthritis have been met. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the United States Air Force, from January 1973 to February 1981 and from December 1981 to March 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. In July 2020, the Board denied the claims. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the July 2020 decision as to the issues on appeal. The Court granted the JMR in a March 2021 order and the matters are again before the Board for adjudication. 1. Entitlement to service connection for a back disability is granted. 2. Entitlement to service connection for a cervical spine disability is granted. 3. Entitlement to service connection for left knee arthritis is granted. The Veteran is seeking service connection for a back disability, cervical spine disability, and left knee arthritis. Specifically, he contends that his disabilities are related to service. Following a review of the evidence of record, for the reasons detailed below, regarding the issues of entitlement to service connection for a back disability, cervical spine disability, and left knee arthritis, affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A Veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As a preliminary matter, in November 2013 VA examinations, the Veteran was diagnosed with a back disability, cervical disability, and bilateral knee disability. As such, the first element of service connection has been met. Regarding the second element of service connection, January 1977 and February 1977 service treatment records (STRs) should that the Veteran complained of pain in his cervical area. In March 1977, the Veteran complained of backache. In September 1977, the Veteran was treated for a twisted ankle, and in February 1980, the Veteran complained that his knees had hurt for the last 6 months. In August 1980 the Veteran complained of knee, back, and cervical pain. In his October 1980 separation examination, the Veteran reported recurrent back pain and soreness in the neck. In an April 1986 STR the Veteran was treated for chronic low back pain. Accordingly, the Board finds that the second element of service connection has been met and the salient question is whether the Veteran's disabilities are related to service. Turning to the evidence of record, in November 2013 VA knee examinations, an examiner opined that it is less likely than not that the disabilities are related to service. Regarding the back disability, the examiner found that the Veteran did not report back pain on his retirement examination. As such, his back disability was not chronic. Regarding the cervical spine disability, the examiner noted that the Veteran reported experiencing neck pain forever but did not describe any acute injury. Regarding the knee disability, the examiner explained that the Veteran was diagnosed with muscular pains during service and was expected to heal without residuals. His retirement examination was silent as to any knee symptoms and the Veteran reported that his symptoms began in the 2000s, many years after service. In a July 2021 private opinion, the Veteran's treating physician noted review of the Veteran's claims folder, to include the medical records, lay statements, military evidence, medical literature, and VA examinations. He opined that the Veteran's thoracolumbar condition with radiculopathy, cervical condition with radiculopathy, and knee conditions are related to service. Here, the Board finds the July 2021 opinion, providing positive nexuses adequate for adjudicative purposes. It is based on an interview with the Veteran, review of the record, and is supported by a well-reasoned explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the opinion is assigned probative value. Comparatively, the November 2013 VA opinions providing negative nexus opinions are inadequate for adjudicative purposes. In these opinions, the examiner does not address the Veteran's multiple inservice reports of chronic back pain, cervical spine pain, and knee pain. In addition, the opinions are inconsistent with the record, to include the Veteran's retirement STR. As such, the Board affords it relatively little probative value. Based on the foregoing, the Board finds that the evidence is in approximate balance as to whether there are positive medical opinions that establishes a link between the Veteran's back disability, cervical spine disability, and knee condition. Resolving reasonable doubt in the Veteran's favor, the Board therefore finds that the third element of service connection has been met for these disabilities. Gilbert, supra. Because the three elements necessary for service connection have been met the claims for service connection for back disability, cervical spine disability, and left knee condition are granted. REASONS FOR REMAND 1. Entitlement to service connection for left ankle arthritis is remanded. The Veteran is seeking service connection for a left ankle disability. Specifically, he contends that his disability is related to service. Following a review of the record, the Board finds that further development is necessary prior to adjudication of the claim. Here, the Board notes that in a November 2013 VA opinion, an examiner opined that it is less likely than not that the disability is related to service. He explained that the Veteran was diagnosed with an ankle sprain in 1977. His retirement examination was silent as to any symptoms and the Veteran reported that he was unsure when his current symptoms began. Given the timing of the November 2013 VA opinion, the VA examiner was not able to consider certain relevant evidence of record that was submitted after the VA examination. For instance, the VA examiner would not have been able to address lay statements subsequently submitted by the Veteran, to include a September 2014 correspondence, in which the Veteran explained that his ankle had been tender since service and that he had indicated such on his retirement examination by indicating he had experienced arthritis. As such, remand is warranted to obtain a new VA medical opinion that includes a rationale that adequately considers all relevant evidence of record. The matters are REMANDED for the following action: 1. The AOJ should attempt to obtain any VA medical treatment records not currently in the Veteran's claims file, as well as any relevant private treatment records not currently in the Veteran's file and associate them with the Veteran's file. In so doing, the AOJ should provide the Veteran an additional opportunity to clarify his representation. 2. Thereafter, the AOJ should obtain a new VA medical opinion from an appropriate VA examiner to address the nature and etiology of the Veteran's left ankle arthritis. The Veteran's claims file and a copy of this remand should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file in its entirety. The need for an additional examination is left to the discretion of the clinician selected to write the opinion. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle arthritis, or any additional left ankle disability, had its onset during or is otherwise etiologically related to his active service. In doing so, the examiner should address the Veteran's lay assertions of record, to include the September 2014 Correspondence. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should specifically consider the Veteran's lay statements regarding the onset of his hearing loss, including his September 2018 Board hearing testimony, as well as the lay and buddy statements he submitted. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. After completing the above requested action, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.