Citation Nr: 21077610 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-02 547 DATE: December 30, 2021 ORDER Service connection for a low back disability, diagnosed as degenerative joint disease and degenerative disc disease of the thoracolumbar spine, is granted. REMANDED Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability, is remanded. Entitlement to a disability manifested by left shoulder pain, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability, is remanded. Entitlement to a disability manifested by left ankle pain is remanded, to include as secondary to a service-connected disability. Entitlement to a disability manifested by right hip pain, to include as secondary to a service-connected disability, is remanded. Entitlement to a disability manifested by left hip pain, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a disability manifested by foot pain (claimed as nerve damage of the feet), to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee is remanded. FINDING OF FACT The most probative evidence reflects that the Veteran's low back disability, diagnosed as degenerative joint disease and degenerative disc disease of the thoracolumbar spine, is the result of injuries incurred while serving in the Colorado Army National Guard. CONCLUSION OF LAW The criteria to establish service connection for a low back disability, diagnosed as degenerative joint disease and degenerative disc disease of the thoracolumbar spine, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1963 to July 1963. He also served more than 33 years in the Nebraska Army National Guard and Colorado Army National Guard from July 1963 to March 1996, to include periods of Active Duty for Training (ACDUTRA) from January 1984 to May 1984, March 1992 to September 1992, and January 1993 to August 1993. The nature of the remainder of his National Guard service has not been verified. This matter comes to the Board of Veterans' Appeals (Board) from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In July 2021, the Veteran and his brother-in-law presented oral testimony in support of his appeal at a Board hearing that was conducted by the undersigned Acting Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. Clarification of the issues on appeal As will be further discussed below, the Veteran contends that his claimed orthopedic and neurologic disabilities subject to this appeal are the result of repeated parachute jumps while serving in the Colorado Army National Guard. However, in intermittent submissions throughout the pendency of the appeal and at the July 2021 Board hearing, the Veteran has alluded to the interplay between the symptoms attributable to each disability and the underlying possibility that each may be secondary to (i.e., caused or aggravated by) one or more of the other disabilities. In view of the Veteran's assertions and the Board's fully favorable disposition of his appeal to establish service connection for a low back disability, the Board has expanded and recharacterized the Veteran's remaining appealed issues to include entitlement under the theory of secondary service connection. Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000). As each of these expanded issues must be remanded for further development, the Veteran is not prejudiced by the Board actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Preliminary matter The appeal before the Board has been developed, adjudicated, and readjudicated by the AOJ in VA's "legacy" appeal system. In August 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, which created a new claims and appeals process for pursuing VA benefits. Within 60 days of the AOJ's issuance of a December 2019 Statement of the Case which continued to deny each of the Veteran's appealed issues comprising his "legacy" appeal, the Veteran concurrently submitted a completed VA Form 9 and VA Form 20-0996, reflecting his simultaneous elections to continue his appeal to the Board in VA's "legacy" appeal system and via the AOJ's Higher-Level Review lane under the AMA, respectively. In a February 2020 deferred rating decision, an AOJ employee noted that the Veteran's attempted AMA election was ineffective due to the concurrent filings; however, the Veteran was not notified of this and/or the reason(s) for such, and his "legacy" appeal was certified and transferred to the Board without further engagement. In April 2021, the Veteran filed a VA Form 20-0995, reflecting his wish to pursue these same benefits under the AMA via the AOJ's Supplemental Claim lane. It appears that this claim was initially accepted, as the AOJ began developing the Veteran's claims, and VA spine and knee examinations were completed on May 1, 2021; however, two weeks later, the AOJ notified the Veteran that his April 2021 Supplemental Claim "cannot be accepted" because "the issues you are claiming are already on an [sic] appeal." The Veteran's "legacy" appeal is currently and properly before the Board. However, as most of these appealed issues are being remanded to correct the AOJ's failures in fulfilling its duty to assist the Veteran, he may opt to continue his appeal in the AMA after the issues are readjudicated by the AOJ by filing an appropriate and timely VA Form. He is encouraged to engage his accredited representative for further assistance with this matter. 1. Entitlement to service connection for a low back disability, diagnosed as degenerative joint disease and degenerative disc disease of the thoracolumbar spine Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially 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). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include 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 means any evidence not requiring that the proponent have any 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). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. Analysis As noted above, the Veteran claims that he incurred a low back disability as a result of multiple in-service parachute jumps while serving in the Colorado Army National Guard. For the reasons discussed below, the Board concludes that the most probative evidence bolsters this assertion, and thus, service connection for the Veteran's low back disability, diagnosed as degenerative joint disease and degenerative disc disease of the thoracolumbar spine, is warranted. The Veteran's post-service treatment records and the reports of July 2018 and May 2021 VA spine examinations reflect diagnoses of degenerative joint disease and degenerative disc disease of the thoracolumbar spine. Further, the Veteran's service department records verify his extensive history of parachute jumps, to include "rough landings" in 1977 and November 1980, as evidenced by in-service complaints of, and treatment for, low back pain and the award of a Senior Parachutist Badge. As the in-service event at issue involves an injury and not the initial onset of a disease, the Board need not discuss whether the Veteran was serving on a period of ACDUTRA or Inactive Duty Training (INACDUTRA) during any of his parachute jumps. Accordingly, elements (1) and (2) to establish direct service connection are amply and unambiguously demonstrated. In view of the above evidence, the crux of the Veteran's appeal is whether the most probative medical nexus evidence supports finding that his low back disability is proximately due to or the result of any incident of his service. There are three medical nexus opinions of record addressing this critical point, and the Board will discuss them and their probative weight, in turn. After completing a review of the file and physical examination of, and interview with, the Veteran, a July 2018 VA examiner opined that the Veteran's low back disabilities were less likely as not the result of any incident of his service. As rationale, the VA examiner stated that, while his service treatment records were replete with instances of reports of low back pain, the Veteran denied such in an isolated instance "near to retirement," and "[a] history of parachute jumping is not sufficient to establish a link." The Board affords the July 2018 VA opinion no probative weight in this matter, as the VA examiner did not address the copious medical evidence reflecting repeated instances of the Veteran's in-service reports of low back pain or state any further reasoning (medical or otherwise) for the conclusion that parachute jumping is insufficient grounds for basing a medical nexus opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In support of his appeal, the Veteran submitted the statement of a private physician's assistant who opined the Veteran's low back disabilities were more likely than not due to "the long[-]term duties and operations during his 25 years in combat roles and parachute operations. This opinion does not reflect that the private physician's assistant reviewed or cited to any evidence within the Veteran's file; however, the rationale is certainly congruent with such, which provides added probative weight to the favorable opinion. Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination). As noted in the Introduction, the Veteran was provided another VA spine examination in May 2021, and after a review of the file, the examiner unambiguously opined that the Veteran's current low back disabilities were at least as likely as not due to his service. As rationale, the May 2021 VA examiner noted the Veteran's repeated "difficult" parachute landings and reports of experiencing "low back issues" while in the Colorado Army National Guard and stated that it was medically probable that those incidents contributed to his current low back disabilities. The Board finds this nexus opinion to be probative of the matter forming the crux of the Veteran's appealed issue, as the opinion is supported by a rationale citing facts from the Veteran's file. Bloom v. West, 12 Vet. App. 185, 187 (1999). Although the Board observes that the AOJ has not reviewed this evidence and the Veteran has not waived such, the Board may do so in the first instance without prejudice to the Veteran due to the fully favorable disposition of this issue. Bernard v. Brown, 4 Vet. App. 384 (1993) As such, element (3) is demonstrated, as the most probative evidence reflects that the Veteran's low back disability, diagnosed as degenerative joint disease and degenerative disc disease of the thoracolumbar spine, is the result of injuries incurred while serving in the Colorado Army National Guard. Accordingly, service connection for a low back disability is warranted, and the claim is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability, is remanded. 2. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability, is remanded. 3. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is remanded. In sum, the Veteran contends that his current disabilities of the right shoulder, right ankle, and left knee were either (1) caused by injuries incurred during repeated parachute jumps while serving in the Colorado Army National Guard or (2) caused or aggravated by a service-connected disability. The Veteran was provided VA examinations in connection with these appealed issues in July 2018, and these examination reports reflect diagnoses of disabilities of each joint. The July 2018 VA examiner's medical nexus opinions did not address possible entitlement under the theory of secondary service connection, as such had not been raised by the Veteran or the record at that time. Nonetheless, readjudication of these issues without obtaining such opinions would be premature given the Board's expansion of these appealed issues and allowance of service connection for a low back disability. Further, the Board finds the July 2018 medical opinions to be inadequate for the purpose of adjudicating these appealed issues. Specifically, the July 2018 VA examiner's unfavorable nexus opinions were based on a lack of medical evidence confirming the Veteran's reports of right shoulder, right ankle, and left knee pain during and since his in-service parachute-related injuries. The United States Court of Appeals for the Federal Circuit has held that such a rationale is inadequate, as the Veteran is considered to be competent and credible to report symptoms experienced on a first-hand basis, such as pain. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of above, the Board concludes that these issues must be remanded to obtain further medical opinions concerning the etiologies of these disabilities. 4. Entitlement to a disability manifested by left shoulder pain, to include as secondary to a service-connected disability, is remanded. 5. Entitlement to a disability manifested by left ankle pain is remanded, to include as secondary to a service-connected disability. 6. Entitlement to a disability manifested by right hip pain, to include as secondary to a service-connected disability, is remanded. 7. Entitlement to a disability manifested by left hip pain, to include as secondary to a service-connected disability, is remanded. 8. Entitlement to service connection for a disability manifested by foot pain (claimed as nerve damage of the feet), to include as secondary to a service-connected disability, is remanded. Again, the Veteran contends that he has current disabilities of the left shoulder, left ankle, hips, and feet that are either (1) caused by injuries incurred during repeated parachute jumps while service in the Colorado Army National Guard or (2) caused or aggravated by a service-connected disability. After a review of the file and physical examination of the Veteran, the July 2018 VA examiner did not identify any diagnosed disability regarding the Veteran's left shoulder, left ankle, hips, or feet, and thus, the matter of a medical nexus for each claimed disability was not addressed. Notwithstanding the above, the examiner noted the Veteran's reports of pain affecting each body part during and since service. To this point, the Federal Circuit recently 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." In light of the holding in Saunders and the Veteran's competent and credible reports of experiencing pain in his left shoulder, left ankle, hips, and feet, the Board concludes that remand is necessary to obtain additional medical opinions concerning the nature and etiologies of these claimed disabilities, and/or the functional impairment of earning capacity stemming from his reported left shoulder, left ankle, hip, and foot pain, as appropriate. Lastly, as with the appealed issues discussed above, the record does not currently include medical nexus opinions addressing the etiologies of these claimed disabilities under the theory of secondary service connection. 9. Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee is remanded. The Veteran was provided VA knee examinations in July 2018 and May 2021. While the Board may not consider the latter in the first instance, review of these examination reports reflects that the range-of-motion of the Veteran's right knee during a flare-up up of symptoms was not quantified by either examiner. The Court has firmly held that this critical evidence is necessary when, as here, a claim or appeal involves consideration of whether an increased evaluation for service-connected musculoskeletal disabilities is warranted. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017); see also Cagliero v. Wilkie, No. 19-6895 (November 30, 2020), (providing that a Sharp-compliant examination (1) describes the increased symptoms during a flare-up and (2) describes the increased limitation of the affected joint (in degrees) during a flare-up). As such, the Board finds that a remand is necessary to obtain contemporaneous and retrospective range-of-motion findings regarding the Veteran's right knee that include during a flare-up of symptoms. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the Veteran's VA file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. \ 2. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the level of functional impairment resulting from his service-connected right knee disability and the nature and etiology of his claimed disabilities of the shoulders, hips, ankles, feet, and left knee. The Veteran's complete VA file must be made available to, and be reviewed by, the VA examiner. All necessary diagnostic testing must be completed. Thereafter, the VA examiner is asked to address the following: a. Please fully describe the frequency, severity, and duration of the manifestations of the Veteran's service-connected right knee disability. Instability and subluxation of the knees must be identified and/or ruled out. The Veteran's knee cartilage must be fully described, as per the applicable rating criteria. *In addition to the information requested by the standard DBQ relating to the knees, the examiner must specifically address the following: *The VA examiner is requested to describe the limitation of motion of the Veteran's right knee in accordance with the laws pertinent to evaluating such disabilities, to include on repetitive motion testing, on active and passive motion in weight-bearing and nonweight-bearing positions, and during flare-ups of symptoms, contemporaneously and retrospectively corresponding to the July 2018 and May 2021 VA examinations. *Regarding the requested findings during a flare-up of symptoms, if the current examination is not being conducted during a flare-up of knee symptoms, the VA examiner is requested to convey any increased symptomatology and limited motion (the latter, expressed in degrees) during a flare-up of symptoms based on the Veteran's statements and other medical evidence of record, to include within his VA and/or private treatment records. *In providing the requested information retrospectively for the time of the July 2018 and May 2021 VA examinations, the VA examiner is encouraged to review all evidence (lay and medical) within the VA file contemporaneous to the examinations and provide the requested findings in their best estimate (increased symptoms and limitation of motion with the latter expressed in degrees) based on this information. b. Please identify or rule out disabilities affecting the body parts listed below since March 2018: i. Both shoulders; ii. Both ankles; iii. Both hips; iv. Both feet; v. The left knee. *In addressing the above, the examiner must specifically discuss whether the Veteran's reports of hip and foot pain are neurologic manifestations of his service-connected low back disability. c. For each disability identified in part (b), please provide an opinion concerning whether such is at least as likely as not (50 percent probability or greater) proximately due to or the result of any incident of service, to include the Veteran's repeated parachute jumps. d. For each disability identified in part (b), please provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability. e. For each disability identified in part (b), please provide an opinion concerning whether such is at least as likely as not aggravated by a service-connected disability. f. If the Veteran's reported pain in his left knee or either shoulder, ankle, hip, and/or feet is not found to be a manifestation of any disability, please describe the functional impairment of earning capacity resulting from the Veteran's pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's pain on his ability to stand, walk, run, bend, stoop, jump, bend, reach, grasp, manipulate objects, and maintain balance. g. For any body part where it is found that the Veteran's pain results in functional impairment of earning capacity, please provide an opinion concerning whether such is at least as likely as not proximately due to or the result any of the Veteran's service, to include the Veteran's repeated parachute jumps. h. For any body part where it is found that the Veteran's pain results in functional impairment of earning capacity, please provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability. i. For any body part where it is found that the Veteran's pain results in functional impairment of earning capacity, please provide an opinion concerning whether such is at least as likely as not aggravated by a service-connected disability. If the examiner cannot provide any of the requested opinions without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.