Citation Nr: 21007717 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-23 625 DATE: February 10, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for left knee disability is granted. Entitlement to service connection for a left hip disability is granted. REMANDED Entitlement to a total disability rating based on a finding of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s back disability is etiologically related to active service. 2. The Veteran’s left knee disability was aggravated during active service. 3. The Veteran’s left his disability was caused or aggravated by his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). 3. The criteria for service connection for a left his disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1989 to October 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the VA Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2018. A transcript of that hearing has been associated with the claims file. This matter previously came before the Board in May 2019, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. Service Connection – Back Disability The Veteran has reported that he has a back disability that is related to his active service. Specifically, he reported that he injured his back while participating in night rappel exercises. He reported that on the night, after the incident, he continued his training and did not seek medical treatment. However, he has reported that he experienced back pain since that time that has gotten progressively worse over the years. Service treatment records (STRs) are silent for complaints of, or treatment for a back disability while the Veteran was in active service. However, the Veteran is competent to report that he first injured his back during active service, and that he has continued to experience pain ever since. Furthermore, the Board finds the Veteran credible in that respect. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Of record are multiple lay statements from the Veteran’s family members and a fellow service member. In a September 2018 lay statement from the Veteran’s aunt, Ms. J.L. In her statement, Ms. J.L. reported that she was close with her nephew (the Veteran) before and after his active service as he would spend a great deal of time at her ranchette, and that he even moved in with her and her mother after he got out of active service. She reported that prior to service, her nephew was a very athletic and physically fit young man. She reported that he never had any issues with his back prior to service. However, Ms. J.L. reported that when her nephew moved in with her after service, she saw him experience intense back pain that got progressively worse over time. She reported that she asked him how he had hurt his back, and he described his in-service injury during a rappel exercise, and that he had experienced back pain ever since. In a September 2018 statement from the Veteran’s spouse. In her statement, the Veteran’s spouse noted that she met the Veteran in 2003, at which time he was already experience back problems. She reported that he had told her that he incurred a back injury during active service while participating in rappelling exercises, and that he had continued to experience pain ever since. In a November 2018 statement from Mr. S.M., a fellow service member of the Veteran. In his statement, Mr. S.M. noted that one night while performing rappel exercised in full gear, the Veteran was told to rappel off a 60-foot tower in a simulated helicopter skid. Mr. S.M. reported that he performed the simulation just after the Veteran in this case, and due to a belay man error, he ended up landing on the ground in a forceful and traumatic way. Mr. S.M. reported that once he caught his breath and regained his strength to get up, he was informed that the Veteran in this case had experienced a similar fall and impact as a result of the same belay man error. Mr. S.M. reported that he and the Veteran both experienced a lot of pain for several days, but feeling pain and pushing through was a part of the course design and as infantrymen, it was just what they did. The Board finds that laypersons are competent to report what they personally observed. In this case, the Veteran’s aunt reported that the Veteran did not have back problems prior to service, and he had back problems upon returning from service. The Veteran’s spouse reported that the Veteran has had back pain since she first met him in 2003. The Veteran’s fellow servicemember corroborated the Veteran’s report of experiencing a traumatic injury to his back in a rappel exercise during service, and corroborated his statements of experiencing pain during service as a result. The Board finds the Veteran’s family members and fellow service member are competent to report such information. Moreover, the Board finds them credible in their reports. Layno v. Brown, 6 Vet. App. 465 (1994). A review of the post-service medical evidence of record shows that the Veteran receives treatment for various disabilities from the VA Medical Center and private providers, to include his back disability. A review of the treatment notes of record shows that the Veteran routinely reported back pain that had an in-service onset. Diagnostic imagine has shown the Veteran to have a bilateral L5 pars defect, anterolisthesis L5-S1 with adjacent endplate changes and pseudo bulge, mild disc desiccation and annular tear at L4-5, spondylolysis at L5 with anterior listhesis at L5/S1 with associated disc degenerative changes also seen at that level. In a September 2008 treatment note from an orthopedic specialist, the Veteran was noted to have lower back pain that had its onset during service in approximately 1991. The Veteran’s orthopedist specifically noted that the Veteran’s back disability was the result of a pars fracture, so was not congenital in nature, and was consistent with the reported in-service traumatic fall. The Board notes that there are additional VA medical opinions of record against the claim. However, those VA medical opinions are inadequate for adjudication purposes as the examiners failed to provide sufficient rationales for the conclusions reached, and failed to consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. As such, those opinions will not be discussed further in this decision. In sum, the Veteran has competently and credibly reported an in-service injury to his back, and back pain that has continued ever since. The Veteran’s reports of in-service injury and pain, and continuing pain since service are corroborated by family members and a fellow service member, who have been found competent to report such information and credible in their reports. The Veteran’s orthopedist has noted that the Veteran’s currently diagnosed disability is consistent with a traumatic injury, and is not congenital in nature. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection – Left knee The Veteran contends that his left knee disability was aggravated by his active service. Specifically, the Veteran reported that he injured his left knee at the age of 15, underwent surgical repair, and recovered without residual. He reported that the extensive physical training he participated in during active service, in addition to two in-service injuries to the left knee, aggravated his healed left knee injury. The Veteran reported specifically that his second in-service injury to his left knee, while playing football, seems to be of an increased severity, which ultimately led to him requiring left knee surgery less than one year after his separation from active service. STRs show that the Veteran was afforded an enlistment examination in August 1989. At that time, the Veteran reported injuring his left knee at age 15, and undergoing surgical repair. Prior to being determined fit for service, the Veteran was seen for an orthopedic evaluation. At that time, it was noted that the Veteran had recovered from his prior left knee injury without difficult, and that physical examination of the left knee at that time was normal. The orthopedist ultimate impression was status pose old arthroscopy of the left knee, currently asymptomatic. The orthopedist found that the Veteran should be able to perform repeated and prolonged activity with he left knee. The Veteran was determined to be fit for service, and was enlisted into active service. Further review of the STRs shows that in April 1990, the Veteran was seen in medical for complaints of left knee pain. He reported that he was in a “scuffle” the previous night and reported that he had twisted his knee trying to avoid another person. Physical examination of the left knee revealed increased pain with valgus laxity check, and pain on flexion. There was pinpoint tenderness in the area of the medical meniscus. The examiner diagnosed medial collateral ligament (MCL) strain and contusion, prescribed medication for pain and hot packs, and placed the Veteran on a physical profile for three days. In May 1993, the Veteran was seen in medical for complaints of left knee pain for the past five days. He reported that he had injured his knee while playing football, that his knee got swollen after the injury. At that time, the examining clinician diagnosed retropatellar pain syndrome, prescribed ice and anti-inflammatory medication, and placed the Veteran on a profile for three days. There does not appear to be a separation examination report of record. As such, it cannot be determined with any level of certainty whether the Veteran reported left knee problems at the time of his separation from active service. Post-service medical records show that the Veteran has consistently reported chronic left knee pain. In March 2009, the Veteran was afforded a VA examination of his left knee. At that time, the Veteran reported that he injured his left knee prior to service and had surgical repair at that time. He reported that while in service, he carried heavy loads and did a lot of walking. He did not report an in-service injury at that time; however, as noted above there are documented injuries to the left knee in service. the Veteran reported that approximately eight years ago, his knee seemed to ge worse, at which time it began to feel loose and weak. Diagnostic imaging at that time revealed left knee arthritis with anterior cruciate ligament (ACL) insufficiency status post meniscal repair. The examiner opined that the left knee disability was less likely as not permanently worsened by his active service. In so finding, the examiner noted that the Veteran had normal adding and that his knee was injured prior to entry into service, and was not permanently worsened other than normal wear and tear. In November 2019, the Veteran was afforded another VA examination of his left knee. At that time, the Veteran reported left knee pain that started in service. He reported that he had an arthroscopic left knee surgery in 1994, and a 2012 left knee meniscectomy. Diagnostic imaging was not performed at that time. The examiner diagnosed medial meniscal tear status post arthroscopy, and opined that it was less likely as not that the Veteran’s left knee disability was incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that the Veteran had a pre-existing knee disability, but was cleared for service, and sustained subsequent knee injuries in 1990 and 1993. In August 2020, an addendum medical opinion was obtained. At that time, the VA examiner opined that the Veteran’s left knee disability, that clearly and unmistakably existed prior to his active service, was not aggravated beyond its natural progression by an in-service injury, event, or illness. In so finding, the examiner noted that while the STRs showed injuries to the left knee in 1990 and 1993, his left knee examinations following the injuries were normal and there was no evidence of aggravation. The Board finds that the VA medical opinions of record are inadequate for adjudication purposes. In this regard, the examiners failed to provide adequate rationales for the conclusions reached. Further, the examiners failed to consider the Veteran’s lay statements regarding the onset and continuity of his symptoms, to include the necessity for a left knee surgical repair within one year of his service separation. As the opinion are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. In sum, the Veteran has a knee injury prior to service, but that injury was noted to be asymptomatic and he was determined fit for duty at the time of his enlistment examination. The Veteran did not begin to experience additional left knee problems until after an April 1990 injury during a “scuffle” at which time he sustained a twisting knee injury. The Veteran again injured his left knee while playing football in May 1993, and has reported that he experienced knee pain ever since. He reported underwent a left knee arthroscopic surgery in 1994, within one year of his service separation. The Board notes that the Veteran is competent to report that he has experienced left knee pain since service, and the Board finds him credible in that regard. The Veteran has a current diagnosis of left knee arthritis, ACL insufficiency, and a meniscus injury. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for a left knee disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Left Hip Disability The Veteran has asserted that he has a left hip disability that was caused by his back disability. As discussed above, the Board has granted entitlement to service connection for his back disability. In November 2019, the Veteran was afforded a VA examination of his left hip. At that time, examiner diagnosed left hip arthritis and snapping hip syndrome. The examiner opined that it was at least as likely as not that the Veteran’s snapping hip syndrome was caused by his back disability. In so finding, the VA examiner referred to an April 2014 orthopedic note of record stating that the Veteran’s back disability may have weakened his iliotibial (IT) band and gluteal muscles enough that it could contribute to his snapping hip syndrome. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a left hip disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board notes that the Veteran does not currently meet the schedular criteria for assignment of a TDIU. However, as the Board has granted service connection for three additional disabilities in this decision, the Board finds that the claim of entitlement to a TDIU is inextricably intertwined with the ratings that get assigned for those disabilities by the Agency of Original Jurisdiction (AOJ). Therefore, a determination on the claim for TDIU should be deferred pending the adjudication of the claims. The matters are REMANDED for the following action: Once the service connection grants discussed above have been implemented, conduct any necessary development and readjudicate the claim of entitlement to a TDIU. If the claim is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.