Citation Nr: 21009005 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-36 065 DATE: February 18, 2021 ORDER Entitlement to service connection for left knee arthritis is granted. Entitlement to service connection for right knee arthritis is granted. Entitlement to service connection for lumbosacral spine arthritis is granted. REMANDED The claim of entitlement to service connection for asbestosis is remanded. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether left knee arthritis relates to service. 2. The evidence is in a state of relative equipoise regarding whether right knee arthritis relates to service. 3. The evidence is in a state of relative equipoise regarding whether lumbosacral spine arthritis relates to service. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee arthritis are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee arthritis are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for lumbosacral spine arthritis are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1956 to July 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified in a hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. Service Connection The Veteran claims he incurred knee and back disabilities during service as the result of rigors associated with his duties as a paratrooper. Laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of lay statements from the Veteran, service treatment records (STRs), service personnel records (SPRs), private and VA treatment records, medical opinions from private and VA treating physicians, and a November 2016 VA examination report. Service connection findings are warranted for the following reasons. First, the evidence establishes that the Veteran has knee and back disabilities. This is documented in both VA and private medical evidence noting degenerative arthritis in the knees and in the thoracolumbar spine. Second, the evidence is in a state of relative equipoise regarding whether the Veteran incurred chronic knee and back disabilities during service. On the one hand, the STRs indicate an absence of chronic knee and back problems during service. Two STRs dated in early 1957 indicate that the Veteran complained of back pain after falling. But neither indicates a chronic problem, a January 1957 x-ray report indicates a normal thoracic spine, and the July 1959 discharge report of medical examination indicates normal knees and back. Further, the earliest medical evidence of record of back or knee problems is found in VA medical evidence dated in the early 2000s, over 40 years after discharge from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Thus, certain evidence indicates the lack of a chronic knee or back disorder during service or for many years following service. See 38 C.F.R. §§ 3.307, 3.309. On the other hand, certain other evidence indicates chronic knee and back problems during service. The record establishes that the Veteran served as a paratrooper and engaged in multiple parachute jumps. In many lay statements of record he describes the wear and tear on his body from hard landings. He describes one particular day of jumping during which five paratroopers were killed and many were injured as the result of inclement weather and unexpected high winds. Newspaper articles corroborate his account. The Veteran states that he injured his knees and back during this particular jump, but that he did not receive medical treatment because so many other paratroopers were injured more severely. His statements are probative because as a layperson he is competent to report observable symptomatology such as traumatic injury to the knees and back. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons are competent to report observable symptoms such as pain). Further, his assertions are credible. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). The record shows that he was a paratrooper so he likely experienced trauma to his knees and back from the many jumps he participated in. The day he describes is corroborated by newspaper articles. He has been consistent throughout the appeal period in the way in which he describes injuring himself while jumping from aircraft. In April 1960, within the first year of discharge from service, he filed claims of entitlement to service connection for back and knee injuries (the claims were discontinued for a failure to prosecute). The final factor creating equipoise on question of whether he incurred injuries in service is the fact that STRs and SPRs are missing from the claims file. Memoranda of record indicate that the records may have been destroyed by fire while in government possession. It is possible that service records supporting the claims are missing. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991) (in a case in which a claimant’s service records are unavailable through no fault of their own, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records). Based on the foregoing, the evidence is in a state of relative equipoise regarding whether the Veteran injured his knees and back during service. Third, the evidence is in a state of relative equipoise regarding whether the in-service injuries relate to the current disabilities. Certain medical evidence counters the claims. In the November 2016 VA examination report, the examiner found current problems likely unrelated to service. In support, the examiner cited the absence of evidence in STRs, and the absence of evidence indicating chronic problems for many years following service. The examiner also noted that the earliest medical evidence of record indicating chronic knee and back problems is associated with workers’ compensation claims filed in the early 2000s. This medical opinion is probative because it is based on an interview and examination of the Veteran and on a review of the claims file, it is provided by a medical professional who demonstrated a familiarity with the case and with the medical issue presented, and it is supported by the evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Other medical professionals support the claims, however. A private surgeon suggested in an April 2017 opinion that findings during a left knee total arthroplasty indicated traumatic arthritis that “could have been secondary” to an in-service injury. In a February 2018 opinion, a private primary care provider noted long-term knee and back problems and stated that the in-service injuries “could have contributed greatly to ongoing intermittent problems he has had over the years.” These opinions address possibility rather than probability so are limited in probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). Nevertheless, the opinions tend to support the claims. Further, these physicians strengthened their opinions in subsequent letters. In a June 2018 statement, the surgeon found a greater than 50 percent possibility that the parachute jumping related to the left knee disability. In a January 2021 letter, the primary care physician found it “apparent that the knee problems started after injuries involved with paratroop jumps in 1958.” She further noted a back injury on the day described earlier. She then stated that there was “no question that the ongoing lifelong degenerative disease in these joints” related to the injuries from parachuting during service. Lastly, in a January 2021 letter, two treating VA primary care physicians discussed the difficulty in determining the “direct cause” of current knee and back disabilities, and that genetics, age, and daily wear play a role. But, after discussing service and paratroop jumps, the physician indicate that service was a “likely contributor” to the current problems. In sum, the record contains several medical opinions addressing the claims. Each is of probative value in that each addresses the evidence of record. Moreover, each opinion is provided by a medical professional who is familiar with the Veteran’s medical history. See Bloom, supra. With this evidentiary background, the Board cannot find that a preponderance of the evidence is against these claims. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claims of entitlement to service connection for knee and back disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is warranted for additional development into the claim of entitlement to service connection for asbestosis. The evidence shows that the Veteran served aboard aircraft. He asserts that he was exposed to asbestos while aboard aircraft and while working around aircraft brakes. Development should be conducted into his claim. See VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section I-3 (M21). The matter is REMANDED for the following action: After conducting development pursuant to the M21, schedule an examination to determine the nature and etiology of any lung disorder. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following question: Is it at least as likely as not (i.e., probability of 50 percent or more) that any diagnosed lung disorder (e.g., COPD, emphysema, pulmonary fibrosis, asbestosis) had its onset during service or is related to an in-service disease, event, or injury? In answering this question, consider and discuss the Veteran’s service aboard aircraft and any relevant findings generated by the RO’s development pursuant to M21. Please explain in detail any opinion provided and the supporting rationale. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a basis (e.g., credibility) to doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. (Continued on the next page)   In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 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 that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.