Citation Nr: 21073852 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 11-03 741 DATE: December 10, 2021 ORDER Entitlement to service connection for bilateral knee degenerative joint disease is granted. Entitlement to service connection for lumbar spondylosis is granted. FINDINGS OF FACT 1. The Veteran's pre-existing bilateral knee Osgood-Schlatter disease increased in severity during his military service, and there is no clear and unmistakable evidence that this increase was due to the natural progress of the disease. 2. The Veteran's current bilateral knee degenerative joint disease is related to the in-service aggravation of bilateral knee Osgood-Schlatter disease. 3. The evidence is at least evenly balanced as to whether the Veteran's lumbar spondylosis is related to his active duty service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbar spondylosis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to October 1968. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for bilateral knee Osgood-Schlatter disease and back injury. The Board remanded the matters in March 2014 and October 2020 for further development. As the Board is granting the claims of service connection in full, discussion of compliance with the Board's remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for bilateral knee degenerative joint disease A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the Veteran was noted to have bilateral knee Osgood-Schlatter disease during his July 1965 enlistment examination. Therefore, the issue becomes whether the current knee disabilities, bilateral knee degenerative joint disease, are due to the aggravation of the preexisting knee conditions by the Veteran's service. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) ("There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the "presumption of aggravation"). Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). If the preexisting disorder underwent an increase in severity during service, it is presumed to have been aggravated by service unless there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). The term "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003). An August 1968 service treatment record noted the Veteran's chronic right knee pain. In an October 1968 service treatment record, the Veteran reported occasional swelling and pain of the right knee. In an April 2008 statement, the Veteran's buddy stated that, upon separation from service, the Veteran was not able to obtain employment at various chemical plants because of his bilateral knee problems and his inability to climb. In an August 2008 private treatment record, the Veteran's treating orthopedic surgeon noted chronic Osgood-Schlatter disease with large osteophyte anteriorly, and the Veteran's report of a trauma in 1965 to his knee that caused pain aggravated by bending. He found that the Veteran's knee osteoarthritis was more likely than not a worsening of his previous injuries. During a December 2008 VA examination, the Veteran reported chronic knee pain. The examiner found that the Veteran's knee disabilities prevented him from being gainfully employed performing heavy duty. In an August 2008 statement, the Veteran indicated that he has coped with pain in his knees over the years. During a January 2016 VA examination, the Veteran reported that during service he could not straighten his left knee, and that after discharge he could no longer climb. The VA examiner noted the Veteran's separation examination indicated his right knee was anatomically normal with no sequelae, service records were silent for the left knee other than the pre-existing condition of Osgood-Schlatter disease, and found the Veteran did not receive any medical treatment for his knees after discharge from service until 1999. Given that 31 years passed between discharge and the first time he had been seen for knee pain, the examiner reasoned that such evidence indicated that there was no aggravation of the Osgood-Schlatter disease while in service. Moreover, there were no complaints of left knee pain while on active duty, but when he was seen for treatment in June 1999 the left knee was worse than the right. Thus, the examiner found that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In a December 2020 VA opinion, a VA physician found it was less likely than not that the Veteran had a current right or left knee condition aggravated or abnormally progressed in severity by military service. The physician reasoned that the Veteran's increased body mass index (BMI) is a major etiology of the current knee degenerative joint disease. Service treatment records did not contain complaints, diagnosis, or treatment for the current bilateral knee condition. The condition was not diagnosed during active duty service or within a year after separation from service. The evidence supported no continuity of symptoms from separation from service until the current diagnosis. For the following reasons, service connection for bilateral knee degenerative joint disease is warranted based on aggravation of a preexisting disability. The January 2016 and December 2020 VA opinions are inadequate as the examiner and physician did not consider the Veteran's lay statements regarding continuous bilateral knee pain symptoms both in and since separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Therefore, the Veteran's bilateral knee Osgood-Schlatter disease worsened during service given his competent and credible statements of bilateral knee pain in-service that resulted in worsening of bilateral knee disabilities in service. There is no conflicting evidence of record, thus, aggravation is presumed. As noted above, the presumption of aggravation can only be rebutted by clear and unmistakable evidence that the increase was due to the natural progress of the disease. As indicated above, there is no such evidence in this case. The presumption of aggravation has not been rebutted, therefore, the Veteran's preexisting bilateral knee Osgood-Schlatter disease noted at entry into service was aggravated by service. As the above evidence of record reflects that the Veteran has experienced bilateral knee pain symptoms since separation from service, reflecting a nexus between the current bilateral knee degenerative joint disease and the in-service aggravation of preexisting Osgood-Schlatter disease, entitlement to service connection for bilateral knee degenerative joint disease is therefore warranted. Entitlement to service connection for lumbar spondylosis The Veteran contends that he has experienced continuous back pain symptoms both in and since separation from service. January 1968 service treatment records noted the Veteran's low back pain. An August 1993 private treatment record indicated that the Veteran has complained of continuous low back pain for years. In an April 2008 statement, the Veteran's buddy stated that, upon separation from service, the Veteran was not able to obtain employment at various chemical plants because of his bilateral knee problems and his inability to climb. During a December 2008 VA examination, the Veteran reported experiencing back pain since the 1960s. In December 2015, a VA examiner found that the Veteran's back disability was less likely than not related to service. The examiner noted that service treatment records showed that in January 1968 the Veteran was diagnosed and treated for lumbar strain. The October 1968 separation history and physical noted the history of the lumbar strain; however, on physical examination his lumbar range of motion was normal, strength was normal, and he had no neurological deficits. Thus, the lumbar strain was a temporary and transient condition which resolved while in service. There was no medical documentation showing that the Veteran sought treatment for a back complaint within one year of discharge from service. The examiner additionally noted that private treatment records reflected that the Veteran was treated for an acute lumbar strain in 1988 while working with cattle. Lumbar spine x-rays taken December 2008, 40 years after separation from service, demonstrated moderate to severe spondylosis, grade 1 spondylolisthesis L5 on S1. Given that the Veteran did not seek treatment for back pain until 1988 when working cattle and the 20 years since discharge from service, it is more likely than not that the intervening trauma precipitated the onset of his chronic back pain and did not aggravate an unknown preexisting condition. In December 2020, a VA physician found it was less likely than not that the Veteran's back disability was related to service. The physician indicated that spinal spondylosis is the result of disk degeneration and is a natural process of aging. Radiographic changes in this Veteran were most consistent with degenerative spondylosis changes of aging and bone spur formation, rather than trauma, especially since there was no history of immunological or inflammatory diseases. There was also spondylosis involving the thoracic region of the spine, which further supports a degenerative etiology related to aging rather than an in-service traumatic etiology. Moreover, service treatment records did not contain complaints, diagnosis, or treatment for the current condition. The condition was not diagnosed during active duty service or within a year after separation from service, and there was no continuity of symptoms from service discharge until the current diagnosis. For the following reasons, entitlement to service connection for lumbar spondylosis is warranted. The December 2015 VA examination report noted the Veteran's diagnoses of lumbar spondylosis. Thus, the Veteran meets the current disability requirement. The Veteran has consistently reported throughout the appeal period that he experienced back pain symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Thus, the Veteran's reports are credible and competent as there is nothing to explicitly contradict them. The December 2015 and 2020 VA opinions are of little probative weight as they relied on the lack of contemporaneous medical evidence without considering the Veteran's lay statements regarding continuous back pain symptoms both in and since his separation from service. Buchanan, 451 F.3d at 1336. To the extent that the grant of service connection in this matter is based primarily on lay evidence, "nothing 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." Id. at 1335. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's lumbar spondylosis are related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbar spondylosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.