Citation Nr: 21009588 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 12-30 774A DATE: February 22, 2021 ORDER Service connection for a low back disability is granted. Service connection for a right knee disability is granted. Service connection for a gastrointestinal disability is granted. [The appeal with respect to an increased rating and earlier effective date for the award of service connection for tinea cruris/pseudofolliculitis barbae will be the subject of a separate decision.] FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his low back disability is etiologically related to active service. 2. Affording the Veteran the benefit of the doubt, his right knee disability is etiologically related to active service. 3. Affording the Veteran the benefit of the doubt, his gastrointestinal disability is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1983 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the Veteran testified at a videoconference hearing before one of the undersigned Veterans Law Judges. In November 2020, he testified at a videoconference hearing before a second of the undersigned Veterans Law Judges. Both hearings included testimony taken on the three issues being decided herein. At the November 2020 Board hearing, on the record, the Veteran was offered, but declined, an opportunity to testify at a hearing before a third Veterans Law Judge. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Based on the procedural posture, this decision is being rendered by a panel of three Veterans Law Judges. 38 U.S.C. §§ 7102(a), 7107(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). A layperson is competent to report on the onset and continuity of his or her observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Low back disability The Veteran seeks to establish service connection for a low back disability. He was afforded VA thoracolumbar spine examinations in July 2015 and December 2018, which revealed current disabilities of the low back, including arthritis. As such, the current disability prong of this claim for service connection has been met. Further, the Veteran testified before the Board in November 2016 and November 2020 that his back pain began in service after lifting heavy boxes and equipment. His service treatment records (STRs) show that he complained of low back pain onset after lifting heavy objects in service in January 1985. The Veteran has alleged that the pain has continued since that time. The Board acknowledges that the July 2015 and December 2018 VA thoracolumbar spine examiners offered opinions that were unfavorable to the Veteran’s claim. While the Board cannot ignore or disregard the VA examiners’ medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Board notes, first, that the December 2018 examiner stated that the Veteran’s current lumbar spine condition was not related to a muscle strain he incurred in service. However, the January 1985 STR (setting out the Veteran’s complaint of low back pain) does not reflect that a lower back muscle strain was actually assessed at that time, but rather was to be ruled out. Because the opinion was based on an inaccurate factual premise, it is of little probative value. The Board also finds that the July 2015 VA examiner’s opinion lacks probative value. Specifically, that examiner concluded that the low back pain for which the Veteran was treated in service was an acute and transient condition which resolved with no residuals. In so doing, the examiner did not consider the Veteran’s consistent lay statements to the effect that his back pain continued throughout and since service. The Veteran explained that he did not continue to seek formal medical treatment at the time because he treated the pain himself with Motrin, but it never got better. As the examiner did not consider the Veteran’s probative factual assertions, the Board affords very little probative weight to this opinion. The Veteran has asserted that he has experienced symptoms of his low back condition since active service. The Board finds no reason to question the credibility of his statements in that regard. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). His statements are both competent and probative evidence with respect to the onset and continuity of his condition. Affording him the benefit of the doubt, service connection is warranted. Right knee disability The Veteran also seeks to establish service connection for a right knee disability. He was afforded a VA examination in December 2018, when a current diagnosis of iliotibial band syndrome (ITBS) was noted. Although he testified in November 2020 that he had arthritis in his right knee, such has not been shown by the medical evidence of record during the period on appeal. Regardless, the current disability prong of this claim for service connection has been met. Further, the Veteran testified before the Board in November 2016 and November 2020 that his knee pain began in service when he was playing basketball and an anterior cruciate ligament (ACL) sprain was assessed. His STRs show that he sought treatment for right knee pain in March 1984 after he twisted his knee when stepping out of his car. He was assessed with a right knee strain at the time. He also sought treatment for right knee pain after physical training and climbing stairs in June 1986. The STR from that episode of treatment does not show an assessment, but he was given Motrin to take as needed for the pain. The Veteran has alleged that his right knee pain has continued since service. The Board acknowledges that the December 2018 VA knee and lower leg examiner offered an opinion unfavorable to the Veteran’s claim. As noted previously, while the Board cannot ignore or disregard a VA examiner’s medical conclusions [Willis, 1 Vet. App. at 66], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson, 2 Vet. App. at 618. Here, the unfavorable nexus opinion was rendered on the basis of the Veteran’s STRs being silent as to ITBS in service. In arriving at that opinion, the examiner ignored the Veteran’s competent lay statements regarding the history of his right knee symptoms and their onset. Because the examiner did not consider the Veteran’s probative factual assertions, the Board affords very little probative weight to the opinion. The Veteran has asserted that he has experienced symptoms of his right knee condition since active service. On the current record, the Board has no reason to question the credibility of his statements. Buchanan, 451 F.3d at 1337. As such, his statements are competent and probative evidence regarding the onset of his condition, and the evidence supporting service connection is at least in equipoise. Affording him the benefit of the doubt, service connection is warranted for his right knee disability. Gastrointestinal disability The Veteran also seeks service connection for a gastrointestinal disability. A VA nexus opinion was obtained in October 2018 regarding the etiology of his gastrointestinal condition. The examiner noted that the Veteran had diagnoses of gastroesophageal reflux disease (GERD), chronic gastritis, gastroenteritis, and duodenitis. As such, the current disability prong of this claim for service connection has been met. The Veteran testified before the Board in November 2016 and November 2020 that his gastrointestinal symptoms began in service. His STRs show that he was treated for gastrointestinal symptoms (including nausea and diarrhea) in service, and that he was assessed with gastroenteritis in March 1986, November 1986, and March 1987. The Veteran has alleged that the gastrointestinal symptoms have continued since that time. The Board acknowledges that the October 2018 VA examiner offered an opinion that was unfavorable to the Veteran’s claim. As noted, while the Board cannot ignore or disregard a VA examiner’s medical conclusions [Willis, 1 Vet. App. at 66], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson, 2 Vet. App. at 618. Here, the negative nexus opinion was limited to whether the Veteran’s gastrointestinal condition was related to his presumed exposure to contaminants in the water supply at Camp Lejeune. The opinion did not address, and does not bear on, the broader question of whether his current gastrointestinal condition is related to any other incident of, or had its onset in, service. As such, the opinion does not contradict the Veteran’s assertion that his current gastrointestinal symptoms had their onset in service and have continued since that time. As with the prior claims, the Veteran has asserted experiencing symptoms of his gastrointestinal condition since active service. The Board has no reason to question the credibility of his statements in that regard. Buchanan, 451 F.3d at 1337. As such, his statements are probative competent evidence regarding the onset of his condition, and the evidence supporting service connection is at least   in equipoise. Affording him the benefit of the doubt, service connection is warranted for his gastrointestinal disability. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.