Citation Nr: 21006143 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-18 349 DATE: February 3, 2021 ORDER Entitlement to service connection for right knee degenerative arthritis is granted. Entitlement to service connection for lumbar spine degenerative arthritis is granted. FINDINGS OF FACT 1. The Veteran’s right knee degenerative arthritis was at least as likely as not caused by repetitive trauma incurred during his military service. 2. The Veteran’s lumbar spine degenerative arthritis was at least as likely as not caused by repetitive trauma incurred during his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lumbar spine degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 1972 to May 1976. The Veteran is a Vietnam Era Veteran who also served during Peacetime. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing is associated with the claims file. This case was previously before the Board in September 2019. The case was remanded to the RO for further development; the case has returned to the Board for readjudication. The Board finds that there is sufficient evidence of record to render a decision at this time. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for right knee degenerative arthritis 2. Entitlement to service connection for lumbar spine degenerative arthritis The Board finds that the evidence of record supports a grant of service connection for right knee and lumbar spine degenerative arthritis. First, there is evidence of a current disability. The Veteran has been diagnosed with degenerative arthritis of the lumbar spine and the right knee. See 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1163; VA Examination, dated April 2012, November 2019; Private Treatment Records, dated November 2018, March 2006. Moreover, the evidence demonstrates an in-service event, insofar as the Veteran was a paratrooper that performed numerous jumps while in service. See Email Correspondence, dated February 2020; Private Medical Records, dated June 2016, March 2006; Military Personnel Records, dated July 1979-April 1984. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current right knee and lumbar degenerative arthritis is causally related to service. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board notes that a private provider stated that it is more likely than not that the Veteran's right knee and lumbar spine degenerative arthritis were due to his military service, specifically the repetitive jumps performed therein. See Private Treatment Records, dated February 2020. The examiner considered that the Veteran had been in a motor vehicle accident since filing the claims on appeal, but opined that based upon the evidence of record and treatises on the subject of paratroopers and knee and back injuries, she found that the Veteran’s lumbar spine injuries were in existence prior to the 2018 accident and that those injuries were caused by his military service. Inasmuch as there is evidence against the claim, notably April 2012 and November 2019 VA opinion finding that it was less likely as not that the Veteran’s right knee and lumbar spine disabilities were caused by the Veteran’s military service, neither of these opinion addressed the Veteran’s statements that he had had continuous symptoms since his military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Hearing Transcript, dated June 2019. As such, the Board assigns these negative opinions limited probative weight. Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right knee and lumbar spine degenerative arthritis were caused by his in-service repetitive parachute jumping. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for right knee and lumbar spine degenerative arthritis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.