Citation Nr: 21075146 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 12-21 268 DATE: December 17, 2021 ORDER Entitlement to service connection for bilateral knee osteoarthritis is granted. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for cervical spondylosis is granted. Entitlement to service connection for right shoulder arthropathy is granted. Entitlement to service connection for bilateral hip arthritis is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's bilateral knee osteoarthritis is related to his active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran's degenerative disc disease of the lumbar spine is related to his active duty service. 3. The evidence is at least evenly balanced as to whether the Veteran's cervical spondylosis is related to his active duty service. 4. The evidence is at least evenly balanced as to whether the Veteran's right shoulder arthropathy is related to his active duty service. 5. The evidence is at least evenly balanced as to whether the Veteran's bilateral hip arthritis 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 osteoarthritis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cervical spondylosis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right shoulder arthropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hip arthritis 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 January 1968 to May 1972. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claim of service connection for joint pain. The Board remanded the matter in April 2015 for further development. In September 2018, the Board denied the claim of service connection for joint pain, to include as due to exposure to herbicide agents. In August 2019, the Court set aside the Board's September 2018 decision denying the Veteran's claim of service connection for joint pain and remanded this claim for readjudication in compliance with directives specified in an August 2019 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA. The Board remanded the matters in March 2020 and August 2021 for further development. As the Board is granting the claims of service connection in full, discussion of compliance with the Board's August 2021 remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court explained that in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the Board has recharacterized the claim of service connection for joint pain as claims for service connection for bilateral knee osteoarthritis, degenerative disc disease of the lumbar spine, cervical spondylosis, right shoulder arthropathy, and bilateral hip arthritis, as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Board acknowledges that the Veteran is currently in receipt of service connection for fibromyalgia as secondary to service-connected PTSD. However, under Clemons, and because the Veteran contends that he has suffered from continuous symptoms of joint pain in and since service, the Board must address all joint symptoms and disorders and determine whether service connection is warranted for any disabilities in addition to those for which the Veteran is already in receipt of service connection. Entitlement to service connection for bilateral knee osteoarthritis, degenerative disc disease of the lumbar spine, cervical spondylosis, right shoulder arthropathy, and bilateral hip arthritis 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). The Veteran contends that he has experienced joint pain symptoms in service and since separation from service. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). When there is no award signifying combat, a combat determination must be made on a case by case basis. VAOPGCPREC 12-99 (October 18, 1999). A finding that a veteran engaged in combat with the enemy under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) requires that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone," but did not themselves engage in combat with the enemy. Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). In this case, during an October 1996 VA examination, the Veteran reported that he served in Vietnam from May 1968 to June 1969 as security and experienced mortar and sniper fire from the enemy over the course of his deployment. Given the October 1996 VA examination report, the Veteran's military personnel records, and the Veteran's lay statements in regard to experiencing mortar and sniper fire, which is credible and consistent with the places, types, and circumstances of his service, the evidence is at least evenly balanced as to whether he engaged in combat with the enemy. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he engaged in combat with the enemy. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim and not merely its ultimate disposition); 38 U.S.C. § 1154(b) (specifying application of the benefit of the doubt doctrine for in favor of combat veterans). Moreover, the fact that the Veteran engaged in combat with the enemy not only assists him in establishing the in-service disease or injury element, but may also assist him in establishing the incurrence of the disability itself. Reeves, 682 F.3d at 998. During a November 1992 VA examination, the Veteran reported a long history of problems with various joints. The most significant problems involved the neck, shoulders, and knees. A February 2018 VA opinion indicated that the Veteran's diagnosis of a fibromyalgia syndrome (FMS), could be perceived as pain surrounding multiple joints, and the Veteran's demonstrated gouty/crystal arthritis and degenerative/osteoarthritis have affected multiple joints. However, none of these conditions were presumptively related to herbicide agent exposure. Osteoarthritis is a wear-and-tear arthritis that develops with aging and is believed to be a primary defect of the joint cartilage. Gout is a metabolic disease caused by hyperuricemia by which uric acid crystals may be deposited in joints leading to destructive inflammation. None of these conditions have been known to be caused by, or the result of, herbicide agent exposure. Thus, it was less likely than not that the Veteran's joint pain was related to service. In June 2021, a VA physician noted that the Veteran's service treatment records did not contain notations of complaints, treatment, or diagnosis for joint pain. Therefore, based on examination and review of medical records, the claimed joint pain condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. In October 2021, a VA physician indicated that the Veteran's arthritis complaints were most likely related to degenerative disease. The Veteran had not been diagnosed with a non-degenerative arthritis either at the current examination or according to medical records. It appeared that the Veteran's arthritis was degenerative in nature, such as osteoarthritis, degenerative disc disease, and degenerative joint disease. These were likely the causes of his joint pain, possibly in combination with fibromyalgia, but it was not possible to determine the context of these any further. For the following reasons, entitlement to service connection for bilateral knee osteoarthritis, degenerative disc disease of the lumbar spine, cervical spondylosis, right shoulder arthropathy, and bilateral hip arthritis is warranted. A September 2016 VA examination reported noted the Veteran's diagnosis of bilateral knee osteoarthritis. A February 2015 VA treatment note recorded the Veteran's diagnosis of degenerative disc disease of the lumbar spine. An August 2016 VA treatment note indicated the Veteran had cervical spondylosis. A May 2015 VA treatment note recorded the Veteran's diagnosis of right shoulder arthropathy. An August 2019 VA treatment record noted the Veteran's diagnosis of bilateral hip arthritis. Thus, the Veteran meets the current disability requirement. The Veteran has consistently reported throughout the appeal period that he experienced joint 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 v. Nicholson, 451 F.3d 1331, 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 February 2018 and June 2021 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 joint pain symptoms both in and since his separation from service. Id. at 1336 (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"). In regard to the question of the nature of the Veteran's joint pain, the VA physician in October 2021 reasoned that the Veteran's arthritis was degenerative in nature, and the degenerative diseases were likely the causes of his joint pain. This opinion is entitled to some probative weight when reading the opinion as a whole and in the context of the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, as discussed previously, the fact that the Veteran engaged in combat with the enemy not only assists him in establishing the in-service disease or injury element, but may also assist him in establishing the incurrence of the disability itself. Reeves, 682 F.3d at 998. 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 bilateral knee osteoarthritis, degenerative disc disease of the lumbar spine, cervical spondylosis, right shoulder arthropathy, and bilateral hip arthritis 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 bilateral knee osteoarthritis, degenerative disc disease of the lumbar spine, cervical spondylosis, right shoulder arthropathy, and bilateral hip arthritis 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.