Citation Nr: 21069907 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 09-31 295 DATE: November 22, 2021 ORDER Entitlement to service connection for neck disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. Entitlement to service connection for a lower back disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. Entitlement to service connection for a bilateral hand disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. Entitlement to service connection for a bilateral knee disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. FINDINGS OF FACT 1. The evidence reflects that the Veteran's neck disorder is due to service or incidents therein. 2. The evidence reflects that the Veteran's lower back disorder is due to service or incidents therein. 3. The evidence reflects that the Veteran's bilateral hand disorder is due to service or incidents therein. 4. The evidence reflects that the Veteran's bilateral knee disorder is due to service or incidents therein. CONCLUSIONS OF LAW 1. The Veteran's neck disorder was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The Veteran's lower back disorder was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The Veteran's bilateral hand disorder was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The Veteran's bilateral knee disorder was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to March 1974. The issues come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 2008 by a Department of Veterans Affairs (VA) Regional Office. In April 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The record was held open for 30 days for the submission of additional evidence. A copy of the transcript is of record. In October 2020, the Board issued a letter inviting the Veteran to request a virtual hearing instead of waiting for a travel Board hearing. However, it was later determined that a hearing had already been conducted in April 2011. The issues were previously before the Board five times. The Board remanded the issues in September 2011, January 2015, July 2019, and November 2020. In July 2017, the issues were also denied by the Board, and the Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court). In a December 2018 memorandum decision, the Court vacated the Board's July 2017 decision and remanded the issues for development consistent with the decision. Per the November 2020 Board remand, the Veteran was scheduled for a VA examination. In August 2021, however, a letter from QTC Med Services notified VA that the examinations were not conducted because the Veteran "requested that QTC to deliver this claim to the VA without a General Medical exam [because he was] no longer pursuing the [claims for] arthritis of the hands, back, knees, and neck." Later August 2021, the RO notified the Veteran that should he wish to withdraw his claims, he needed a signed statement, call, visit the nearest VA regional office, or send an email expressing such an intent. As there is no affirmative evidence of the Veteran's wish to withdraw his appeal, the Board moves forward with the decision. 38 C.F.R. § 20.205. Regarding compliance with the Board's November 2020 remand directives, the Veteran was scheduled for examinations in March 2021. As previously explained, the Veteran was notified but did not report. Thus, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for neck disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. 2. Entitlement to service connection for a lower back disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. 3. Entitlement to service connection for a bilateral hand disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. 4. Entitlement to service connection for a bilateral knee disability as secondary to service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis is granted. The Veteran has been diagnosed with arthritis of the neck, lower back, bilateral hand, and knee. He contends that the said disabilities were incurred in service continued. Alternatively, he avers a theory of secondary service connection to generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis. The Board notes as the Veteran is herein being granted service connection on a direct basis, service connection on a secondary basis is moot. During his April 2011 Board hearing, he credibly and completely testified that his disabilities were the result of "basic training and Infantry training, [where he] fell down and stuff like that..." Specifically addressing the knee disability, he testified that he "was hurting in the knee and stuff and figured that it was part of the job [since he] was out of shape. His knees have caused a problem since 1974, and there was never a time when they have not." As for his back, neck, and hands, he additionally testified that about "15 years ago, [the inability to] straighten out fingers, bend," and hold on to things started happening. He did not file a VA claim since he was receiving Workman's Compensation and waited until his last disability check before submitting a VA claim. The Veteran's service treatment records (STRs) dated in January 1973 note a complaint of mid-back pain after a fall from a ladder while on leave. The clinician diagnosed a "very mild low back strain." The post-service treatment records show treatment for joint pain at VA medical centers several times during the 1990s and early 2000s. Treatment notes dated in October 1992 indicate that the Veteran saw a VA physician, who noted a "[history] suggestive of rheumatoid arthritis [RA with] low back pain." Treatment notes dated in November 1997 noted a complaint of lower back pain. An October 1999 treatment note indicated a clinical visit for lower back pain, for which the Veteran reported no specific traumatic incident that may have caused the pain. Treatment notes dated in January 2000, March 2002, July 2003, and October 2003 reflect complaints of lower back pain. In October 1996, the treatment notes indicated the Veteran's complaint of pain in the "right side of [his] neck [that had] been hurting for two month[s]." The clinician assessed neck pain. Treatment notes dated in August and September 2009 noted complaints of joint discomfort. The Veteran reported pain in the wrists and bilateral knees, significant swelling of the bilateral ankles, and small joint swelling of fingers on bilateral hands, but more so on the left hand. The rheumatologist noted lower back pain and "instability as he ambulate[d]" and commented that the Veteran had a "history of intermittent inflammatory arthritis and osteoarthritis. Notably, he "wonder[ed] about the possibility of reactive arthritis given his history of bilateral pain and swelling and inflammatory arthritis when he was a Marine at Guantanamo" Bay, Cuba. In support of his claim, the Veteran provided numerous statements from friends and colleagues attesting primarily to his knee pain. In a May 2011 statement from R. R., owner of a construction company, he indicated working with the Veteran in the '70s and '80s, and he had bad feet and complained of pain in the knee. In a statement from the Veteran's sister, G. B., received May 2011, she competently and credibly stated that upon his return from service, "he had quite a few medical problems, [including] foot trouble, some psychological, [and it was] quite a while before he could work. [He was] always complaining about his feet, knees, hands, and back; mainly his feet and knees." Throughout the appeal period, the Veteran was afforded VA Disability Benefits Questionnaires (DBQ) in January 2008, February 2013, September 2016, and addendum opinions of April 2013 and February 2017. The Court has since found these examinations inadequate. Barr v. Nicholson, 21 Vet. App. 303,311 (2007); Miller v. Wilkie, 32 Vet. App. 249, 259 (2020); Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018). The Veteran has held that his arthritis of the neck, back, bilateral hand, and the bilateral knee is a result of service or his service-connected generalized anxiety disorder and bilateral first cuneiform metatarsal joint arthritis. He competently and credibly testified that he believed that they are a result of basic training and the rigors therein. His sister's note corroborates that he returned home with "quite a few medical problems, ... [and] was always complaining about his feet, knees, hands, and back but, mainly his feet and knees." As there are no adequate VA opinions to the contrary, the Board finds that the evidence is sufficient to establish that the Veteran's neck, back, bilateral hand, and bilateral knee disabilities are related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's neck, back, bilateral hand, and bilateral knee were incurred in service. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. Thus, service connection is, therefore, granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.