Citation Nr: 21007652 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-58 115 DATE: February 10, 2021 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a lower back disorder is remanded. REASONS FOR REMAND The Veteran had active service from November 1966 to June 1989. He served in the Republic of Vietnam from June 1969 to June 1970. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from June 2015 and July 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, the Agency of Original Jurisdiction (AOJ). In the June 2015 rating decision, the AOJ denied service connection for a left knee disorder. In the July 2015 rating decision, the AOJ denied service connection for a lower back disorder. The Veteran appealed these determinations and the present appeal ensued. The Veteran recently testified during a videoconference hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the Veteran's claims file. 1. Entitlement to service connection for a left knee disorder is remanded. The Veteran has asserted that his left knee disorder is related to an injury he experienced during service. Service treatment records dated January 15, 1975, show the Veteran slipped and fell onboard ship about 15 feet in the forward cargo hold. He struck his left knee, medial aspect, causing injury. He was treated for possible hairline fracture of the patella with an ace wrap, ice pack, and Codeine. The Veteran was afforded a VA examination for knee disorders in June 2015. The examiner diagnosed left knee tendonitis/tendonosis. The Veteran reported that he fell 20 feet aboard a ship during service, injuring his left knee, which injury was treated with ice, ace bandage and crutches. The Veteran reported flareups described as throbbing pain in kneecap area. Range of motion was abnormal. Objective evidence of moderate patella tendon pain was noted. Crepitus was noted. Interference with standing was noted. MRI of the left knee showed degenerative or traumatic arthritis. The examiner opined that it is less likely than not that the Veteran’s left knee disorder was incurred in or caused by service. The examiner noted service treatment records documenting an accident wherein the Veteran’s foot was run over which incident does not relate to the Veteran’s knee claim. Based on the unrelated incident, the examiner opined that the Veteran's left knee disorder was less likely as not caused by or a result of his military service. The examiner did not address the Veteran’s documented in-service knee injury caused by a fall. During the January 2021 hearing, the Veteran testified that his MOS during service was ship’s electrician. His job duties involved going to various parts of the ship, wherever he was needed, going through bulkheads, climbing ladders, and similar tasks. The Veteran testified that he was going through the ship's porthole to investigate an electrical problem when he fell while the ship was rocking. He fell about 20 feet into the cargo hold, hitting the solid steel there. Service medical records that on January 15, 1975, there was treatment for the Veteran’s left knee. Since the time he fell and injured his knee during service, the Veteran reported that he has experienced constant pain. He stated that his knee pain was treated with painkillers, ibuprofen or Tylenol, and codeine. He stated that when he would go to military sick hall, he was given only an ACE wrap, cold compress, and pain killers. Throughout his military career, he received treatment on an ongoing basis on the ship and also on shore facilities, including a Naval hospital and military dispensaries. He was provided with painkillers. The Veteran stated that after discharge from service, he obtained further treatment for his knee at the VA, and was provided with painkillers. He also went to outside immediate care, which also provided painkillers. He indicated that since his in-service fall, his symptoms have been continuous and ongoing. There has also been ongoing treatment. He stated that during service, he also trained recruits and did a lot of running during training and a lot of marching which he believes also contributed to the pain in his knee. He indicated that these duties either aggravated or continued the knee pain he experienced when he first injured his knee. He stated that currently he has knee pain, he has a limp, and that there are days when he can’t bear weight on his knee. The Board finds that the June 2015 examiner based his opinion on the wrong facts, which were relevant to the Veteran’s claim for a foot disorder, while failing to address the facts relevant to the Veteran’s claim for a left knee disorder. The examiner opined that the Veteran's left knee disorder was less likely as not caused by or a result of his military service, including the incident noted in the service treatment records wherein the Veteran’s foot was run over by a vehicle. In rendering this opinion, the examiner failed to note the Veteran’s left knee injury that was documented in his service treatment records in January 1975. As such, the Board finds that the VA examiner based his opinion on an inaccurate factual premise and it is insufficient for rating purposes. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the Board finds that remand is required for a new VA examination and opinion. 2. Entitlement to service connection for a lower back disorder is remanded. The Veteran has asserted that his lower back disorder resulted from an in-service injury. Service treatment records dated August 27, 1974, note back pain for five months from mid waist to neck, getting progressively worse. Pain is increased when he goes from a hot area to a cold area and in some positions. The Veteran reported constant back pain for five months. Muscle spasms were noted. Service treatment records from September 10, 1974, noted back pain for five months much worse since the August 1974 visit. X-rays were negative. Service treatment records dated June 9, 1975, noted complaints of lower back pain on both sides. The Veteran reported having back pain for one year but pain seems to be getting worse. Bilateral paravertebral muscle spasms were noted. A November 25, 1988, service treatment record noted lower back pain, including when standing up from sitting position. The Veteran was diagnosed with low back strain. The Veteran was afforded a VA examination for back (thoracolumbar spine) disorders in June 2015. He was diagnosed with degenerative arthritis of the spine. A diagnosis of lumbar spondylosis was also provided. The examiner noted a back disorder since November 1988. The Veteran described flare-ups with pain that is so intense he can’ keep his body straight and the pain “transmits” his whole back to his neck. The examiner noted that arthritis is documented per x-ray with no fractures or dislocation and no instability of the lumbosacral spine. Moderate degenerative disc disease at L3-L4 and L4-L5 with milder degenerative spurring of L3 and L4 was noted; the remaining disc spaces were normal. There was normal alignment of the lumbar vertebrae. The examiner opined that the Veteran’s low back disorder was less likely than not than the result of his back pain during service. The examiner reasoned that there was only one visit for back pain during service in 1988 that was diagnosed as a strain. The examiner found that the Veteran’s lower back disorder is more likely due to his age. An addendum opinion was requested as the original opinion was found to be unacceptable because the rationale noting only one medical visit for back pain during service was not consistent with the evidence of record. The examiner declined to change his opinion that the Veteran’s back condition was less likely than not incurred in or caused by service, continuing to assert that there was only one in-service medical visit for back pain, although service treatment records noted several visits. During the January 2021 hearing, the Veteran testified that he was lifting a ventilation motor onboard a ship when he felt like something snapped in his back and he started having pain in his back that has continued ever since. When asked, the Veteran stated that the injury occurred on the USS Noxubee although service treatment records dated August 27, 1974, show treatment for back pain, noting it had existed for five months, onboard the USS Shenandoah. The Veteran explained that at that time, the USS Noxubee did not have a medical representative so they used medical representatives from different units. The Veteran stated that he experienced back pain continuously and ongoing since his injury during service. When seen at dispensaries during service, he was provided with medication. Since he was injured, he has been seeing doctors for treatment and taking medication. He has gone to physical therapy at the VA and has seen chiropractors that he was referred to by a VAMC, although he noted there is no documentation on his medical record. The Veteran has asserted that his back pain began since the incident onboard the USS Noxubee during service and has continued since then. He indicated that he experiences problems every day and that the pain has been ongoing and continuous since his in-service injury. The Veteran’s representative noted that the 2015 examiner stated that he found only one entry in the service treatment records for back pain and therefore he found there was no continuing problem. However, the Veteran’s representative noted there is an entry on August 27, 1974, noting back pain lasting for five months, and entries on September 10, 1974, and June 9, 1975, noting back pain. The Board finds that the June 2015 VA examiner based his opinion on inaccurate facts. In the 2015 VA examination, the VA examiner opined that the Veteran's lower back disorder was less likely as not caused by or a result of his military service, or related to in-service complaints of back pain. In rendering this opinion, the examiner stated there was only one service treatment record in 1988 that identified evidence consistent with a lower back disorder. However, the Veteran's service treatment records show several visits for lower back pain as early as August 1974. VA provided the examiner an opportunity to correct his opinion in an addendum but he declined to do so and continued to assert that there was only one incident of back pain noted in the service treatment records. As such, the Board finds that the VA examiner based his opinion on an inaccurate factual premise and it is insufficient for rating purposes. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the Board finds that remand is required for a new VA examination and opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his left knee disorder. The examiner must review the relevant evidence in the Veteran’s claims file in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disorder had its onset in, or is otherwise related to, the Veteran's active duty service. The examiner should ensure that the facts relied upon are accurate and relevant to the Veteran’s claim on appeal. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his lower back disorder. The examiner must review the relevant evidence in the Veteran’s claims file in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s lower back disorder had its onset in, or is otherwise related to, the Veteran's active duty service. The examiner should ensure that the facts relied upon are accurate and relevant to the Veteran’s claim on appeal. A rationale for all requested opinions should be provided. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.