Citation Nr: 21068890 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-58 987A DATE: November 15, 2021 ORDER Entitlement to service connection for a right knee disability, diagnosed as osteoarthritis and degenerative joint disease, is granted. Entitlement to service connection for a left foot disability, manifested by pain and functional loss, is granted. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran's right knee disability, diagnosed as osteoarthritis and degenerative joint disease, resulted from an in-service injury. 2. The most probative evidence reflects that the Veteran's left foot disability resulted from an in-service injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, diagnosed as osteoarthritis and degenerative joint disease, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had verified active duty for training in the Army Reserve from September 1975 to March 1976. She also had additional service in the Army Reserve from April 1975 to February 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran's Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. The Veteran subsequently testified at a January 2021 hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. The Veteran's claims were previously before the Board in April 2021, when they were remanded for further development. SERVICE CONNECTION 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). 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). 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). Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106, 1110, 1131. Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). 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 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a right knee disability, diagnosed as osteoarthritis and degenerative joint disease The Veteran contends that during reserve training, she was waking and stepped into a pipe with her left foot and fell onto her right knee. The Veteran has stated that she sought treatment for her injury two days after it occurred. Further, the Veteran contends that she has experienced difficulties with both her left foot and her right knee since the May 1980 injury. As an initial matter, the Board notes that the Veteran was diagnosed with right knee osteoarthritis, degenerative arthritis, and degenerative joint disease, in July 2021. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records indicate that she was injured in May 1980. The May 1980 service treatment records indicate that the Veteran had knee pain and swelling, bruises, and tenderness, stemming from a fall. Additionally, the Veteran was living with her parents at the time of her injury, and both her mother and her father submitted statements in January 1990, indicating they had witnessed the Veteran's injuries to her leg after the May 1980 fall. As such, the Board finds the second element, in-service injury, has been met. The Veteran was provided a VA medical examination in July 2021. The examiner provided a negative nexus opinion, rationalizing that the Veteran's medical record is silent for a claim of in-service injury. The examiner further stated that while the Veteran's explanation of her injury sounded plausible, it is without evidentiary support, and therefore the claimed disability is less likely than not related to her service. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. The Veteran's service treatment records include documentation of treatment for the injury the Veteran sustained in May 1980, contrary to the July 2021 medical examiner's conclusion that the medical record is silent for an injury. Additionally, the examiner found the Veteran's explanation for her injury plausible, but determined the injury was not related to service due to an absence of evidence. Although the examiner indicated that the Veteran's statements regarding the explanation of the injury, and resulting disability, the examiner did not give weight to the Veteran's lay statements. Further, the examiner did not address the etiology of the Veteran's right knee disability. Therefore, the ultimate etiological opinion is given little probative value. As noted in the most recent remand, the Veteran is competent and credible to report the symptoms of her right knee disability, including the onset of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe her symptoms however not to diagnose those symptoms. The Veteran has consistently maintained that as the result of the May 1980 injury, she has had difficulty and pain in her knee. Additionally, the Veteran maintains that she was instructed to not report the knee injury on subsequent physicals, as she would be forced to leave the Army Reserves, and that would result in her losing her job, as it was tied to having reserve status. Therefore, the Board finds that the competent evidence of record is at least in equipoise as to whether the Veteran has experienced symptoms of her diagnosed right knee arthritis since the injury she sustained. Moreover, since the negative opinion of the VA examiner was based on false assumptions, the Board finds it reasonable to conclude that had such false assumptions been communicated to the examiner, it is reasonable to conclude that the examiner's ultimate opinion would have likely been different. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a right knee disability, diagnosed as osteoarthritis and degenerative joint disease, is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. Entitlement to service connection for a left foot disability, manifested as pain and functional impairment. The April 2021 Board remand instructed the AOJ to provide the Veteran with an VA medical examination to determine whether the Veteran's left foot pain reaches the level of a functional impairment of earning capacity so as to constitute a current disability. The Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018). Pursuant to the remand, a medical examination was conducted in July 2021. The examiner documented a diagnosis of pain in unspecified foot, and indicated the diagnosis was for the left foot. The examiner further documented that the Veteran experiences pain in her left foot, and reports the Veteran having functional impairment, as due to the pain she has difficulty walking and standing. It was also noted that the Veteran constantly uses a cane as an assistive device. Pursuant to Saunders, "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board notes that the July 2021 examiner documented the Veteran's diagnosis as pain in unspecified foot, left foot, and noted the Veteran's pain causes her difficulty standing and walking. Therefore, as pain can qualify as a disability, the first element for service connection has been met. As discussed previously, the Veteran has met element two for service connection, an in-service injury. The Veteran's service treatment records, and additional lay statements, indicate that her left foot was injured in May 1980. Finally, the Board notes the July 2021 medical examiner provided conflicting medical nexus opinions. Initially, the examiner stated that the Veteran's left foot pain was less likely than not related to an in-service injury. However, the examiner then elaborated that on the basis of the Veteran's credibility, even in the absence of evidentiary materials from her time of service, it is at least as likely as not that the Veteran's foot pain sustained in service and is therefore at least as likely as not related to her service. As noted above, the Veteran is competent and credible to report that pain related to her left foot. That includes reporting the onset of such pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that pain alone can constitute a ratable disability in this circumstance and, thus, for the purpose of this decision, the Board will accept that the Veteran has a left foot disability, owing to her left foot pain, even absent an underlying diagnosis accounting for such pain, and qualifies as a disability per Saunders. For the purposes of this decision, it is sufficient that the Veteran has shown that she experiences left foot pain that has caused functional loss and that her pain has continued since the May 1920 injury, and thus relationship has, at least to some degree, been supported by a recent examiner. Service connection is for such disability is therefore warranted. 38 C.F.R. §§ 3.102, 3.303(d); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.