Citation Nr: 21073137 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-36 119A DATE: December 7, 2021 ORDER Service connection for degenerative disk disease of the lumbar spine with bilateral radiculopathy of lower extremities is granted. Service connection for headaches is granted. REMANDED Service connection for left knee disability is remanded. Service connection for right knee disability is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's degenerative disk disease of the lumbar spine with bilateral radiculopathy of lower extremities had its onset during service. 2. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's headaches had their onset during service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for back condition with bilateral radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for headaches have been met. 38 U.S.C. §§ 1131, 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 Navy from May 1980 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in February 2019 and it was remanded for further development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. See 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. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Back condition The Veteran asserts that service connection is warranted for his lumbar condition because the disability started while he was in service. In support, he reported having back problems in service and thereafter where he received medical treatment. Indeed, his service treatment record (STR) and medical record shows that he suffered from back problems, symptoms and functional impairment in service and received medical treatment during service and thereafter. See STR (March 1984); see also VA medical treatment record (October 2003 and August 2021). The Veteran has been diagnosed as having degenerative disc disease of the lumbar spine, degenerative arthritis, spinal stenosis, radiculopathy in both lower extremities and sciatica. See VA medical examination (September 2021). Thus, the Veteran has a current condition, and establishes the first element for service connection. Additionally, the Veteran's STR and medical record shows back problems and functional impairment with treatment in service and thereafter. See STR (March 1984); see also VA medical treatment record (October 2003 and August 2021). The Board acknowledges that on September 2021 a VA examiner provided a negative nexus opinion on the relation of the Veteran's lumbar condition to service. However, the opinion is inadequate to the extent that it is not supported by rationale and does not address the Veteran's report of symptoms since service. The Board finds that the medical and lay evidence linking the Veteran's lumbar disability to service is probative, competent and credible. Indeed, the Veteran's medical record shows back problems in service and thereafter and he is competent and credible to report recurrent back problems since his documented in-service back treatment. Collectively, this lay and medical evidence shows that it is at least as likely as not that the Veteran's current back disability had its onset during service. After resolving any doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's back disability had its onset during service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Boards also notes that the Veteran has a diagnosis of radiculopathy in his bilateral lower extremities due to his service-connected back condition. See VA medical examination (September 2021). In light of the foregoing, the Board finds that his bilateral lower extremity impairment is within the scope of his claim of service connection for back disability. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 873 (May 18, 2021). Thus, service connection for radiculopathy in his bilateral lower extremities is granted. 2. Headaches The Veteran reports that service connection is warranted for his headaches condition because the disability started while he was in service. In support, he reported having headaches problems in service and thereafter where he received medical treatment. Indeed, his service treatment record (STR) and medical record shows that he suffered from headaches, symptoms and functional impairment in service and received medical treatment during service and thereafter. See STR (August 1984 and June 1985); see also VA medical treatment record (February 2018). The Veteran has been diagnosed with cluster headaches. See VA medical examination (September 2021). Thus, the Veteran has a current condition, and establishes the first element for service connection. Additionally, the Veteran's STR and medical record shows headaches problems and functional impairment with treatment in service and thereafter. See STR (August 1984 and June 1985); see also VA medical treatment record (February 2018). The Board acknowledges that on September 2021 a VA examiner provided a negative nexus opinion on the relation of the Veteran's headaches condition to service. However, the opinion carries no probative value as it does not address the Veteran's competent, credible report of headaches since service. The Board finds that the medical and lay evidence linking the Veteran's headaches to service is probative, competent and credible. Indeed, the Veteran's medical record shows headaches in service and thereafter and he is competent and credible to report recurrent headaches since service. Collectively, this lay and medical evidence shows that it is at least as likely as not that the Veteran's current headaches had their onset during service. After resolving any doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's current headache disability had its onset during service, thus, service connection is warranted. REASONS FOR REMAND 3. Knees The Veteran asserts that service connection is warranted for his bilateral knee conditions because the disabilities are related to service and his service-connected conditions. In support, the Veteran has reported painful knees due to his service-connected back condition. See Report of general information (March 2013). The Veteran latest VA medical examination was performed in September 2021. The examiner found that the Veteran does not have a current knee disability. See VA medical examination (September 2021). However, the Board finds that the medical record has several entries of knee pain, to include a diagnosis of knee arthritis. See VA medical treatment record (November 2008). Remand for reexamination is needed to address the nature and etiology of the Veteran's reported knee problems, to include whether such is related to the Veteran's service-connected back disability. The matters are REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran's bilateral knee conditions. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service knee conditions. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination for his reported knee condition. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Is the disability at least as likely as not proximately due to the Veteran's service-connected back disability? Is the disability at least as likely as not aggravated by, i.e., worsened beyond its natural progression, the Veteran's service-connected back disability? In offering these opinions, the examiner must acknowledge and discuss the Veteran's competent lay statements of his conditions and any lay evidence regarding the onset of his conditions. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.