Citation Nr: 21010661 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-20 669 DATE: February 25, 2021 ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a lumbar strain disability. 2. Whether new and material evidence has been received to reopen the claim for service connection for a right knee disability. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD) greater than 30 percent prior to August 8, 2016 and 70 percent thereafter. 5. Entitlement to an earlier effective date for service-connected PTSD prior to July 8, 2013. 6. Entitlement to service connection for a lumbar strain disability. 7. Entitlement to service connection for a right knee disability. ORDER New and material evidence sufficient to reopen the claim of service connection for a lumbar strain disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for a right knee disability has been received, and to that extent only, the claim is granted. The appeal on the issue of entitlement to service connection for irritable bowel syndrome is dismissed. The appeal on the issue of entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD) greater than 30 percent prior to August 8, 2016 and 70 percent thereafter is dismissed. The appeal on the issue of entitlement to an earlier effective date for service-connected PTSD prior to July 8, 2013 is dismissed. Entitlement to service connection for a lumbar strain disability is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. A February 2015 rating decision denied service connection for a lumbar strain disability. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final. 2. The evidence associated with the record since the February 2015 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a lumbar strain disability. 3. A February 2015 rating decision denied service connection for a right knee disability. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final. 4. The evidence associated with the record since the February 2015 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability. 5. At the September 10, 2020 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to entitlement to service connection for irritable bowel syndrome. 6. At the September 10, 2020 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD) greater than 30 percent prior to August 8, 2016 and 70 percent thereafter. 7. At the September 10, 2020 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to entitlement to an earlier effective date for service-connected PTSD prior to July 8, 2013. 8. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s lumbar strain disability is attributable to service. 9. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s right knee disability is attributable service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for a lumbar strain disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 2. New and material evidence sufficient to reopen the claim of service connection for a right knee disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to service connection for irritable bowel syndrome by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD) greater than 30 percent prior to August 8, 2016 and 70 percent thereafter by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an earlier effective date for service-connected PTSD prior to July 8, 2013 by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. Resolving reasonable doubt in the Veteran’s favor, a lumbar strain disability was incurred in service. 38 U.S.C. §§ 1110, 1154 (b), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 7. Resolving reasonable doubt in the Veteran’s favor, a right knee disability was incurred in service. 38 U.S.C. §§ 1110, 1154 (b), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2004 to September 2007. The Veteran’s decorations include the combat infantryman badge and expert infantryman badges. Service in Afghanistan is indicated by the record. This matter is before the Board of Veterans Appeals (Board) on appeal from June 2016 and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2020. A copy of the hearing transcript has been associated with the claims file. The Board observes that favorable rating decisions were issued during the pendency of his appeals. A February 2017 rating decision granted a 70 percent evaluation for service-connected PTSD effective August 8, 2016. Later, an August 2019 rating decision granted service connection for obstructive sleep apnea and assigned a 50 percent disability rating effective September 13, 2018. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). At the September 2020 hearing, the Veteran through his attorney challenged the adequacy of the March 2017 VA medical opinions rendered by T. S-B., NP. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Finality of Service Connection Claims 1. Whether new and material evidence has been received to reopen the claim for service connection for a lumbar strain disability 2. Whether new and material evidence has been received to reopen the claim for service connection for a right knee disability The Board incorporates its discussion from the sections above by reference. Service connection for a lumbar strain disability and a right knee disability was denied in a February 2015 rating decision. The Veteran was informed of the decision and of the right to appeal. He did not appeal or submit new and material evidence within one year of notification. That decision is final. At the time of the decision, the record included the claims and the service records. There was no accepted evidence of diagnosed lumbar spine or right knee disability in service or post service. There was no evidence of a nexus to service. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. On June 17, 2016, VA received the application to reopen the claims of service connection for a lumbar spine disability and a right knee disability. The issues were revisited in a June 2016 rating decision, which denied reopening the claims. The additional evidence presented includes post-service treatment reports from hospitals and medical centers, and a private medical opinion from Dr. M. The evidence establishes that the Veteran has a lumbar spine disability and a right knee disability, possible related to service. As a lack of evidence supporting the presence of a currently diagnosed disability was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156. In light of this new and material evidence, the Veteran’s claims of service connection for a lumbar spine disability and a right knee disability are reopened. These appeals are adjudicated on their merits below. Withdrawn Appeals 3. Entitlement to service connection for irritable bowel syndrome 4. Entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD) greater than 30 percent prior to August 8, 2016 and 70 percent thereafter 5. Entitlement to an earlier effective date for service-connected PTSD prior to July 8, 2013 The Board incorporates its discussion from the sections above by reference. Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55 (a). Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 19.55 (c). The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105 (d). By way of history, at the September 10, 2020 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeals related to entitlement to service connection for irritable bowel syndrome, entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD) greater than 30 percent prior to August 8, 2016 and 70 percent thereafter, and entitlement to an earlier effective date for service-connected PTSD prior to July 8, 2013. The VLJ asked the Veteran, “Yeah, withdraw that. Okay. So it just behooves me to explain to Mr. [Veteran] that, obviously, it --with the advice of your attorney, you’re withdrawing those [issues], and is --is that correct, Mr. [Veteran]?” See September 2020 Hearing Transcript, pp. 3-4. The Veteran responded, “Yes, sir.” Id. This is consistent with Briefs received on September 2, 2020 and May 28, 2020 that also listed these three issues with “Veteran dismisses this issue” in parenthesis. Accordingly, the Board does not have jurisdiction to review these issues on appeal. Therefore, these issues on appeal are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Service Connection To establish service connection a Veteran must generally 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 service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). We note that arthritis is a chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as “chronic.” See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 6. Entitlement to service connection for a lumbar strain disability 7. Entitlement to service connection for a right knee disability The Board incorporates its discussion from the sections above by reference. By way of background, the Service Treatment Records (STRs) include a bone scan of the ankles and feet from August 2005 from Samaritan Medical Center. It is located on page 75 of 96 of the first set of STRs. It contains a notation of mild diffuse increased blood flow to the right ankle and foot. Blood pool images showed increased blood pooling in the right midfoot region. The impression was stress fractures of the metatarsal shaft and base of fourth or fifth metatarsals. This is relevant in that it shows that the Veteran suffered at least some documented injury to the musculoskeletal system of the right lower extremity, possibly due to impact. Later, a November 29, 2005 STR shows that the Veteran complained of only left foot pain and has a history of bilateral foot pain. Additional STRs are substantially the same. A January 18, 2006 Pre Deployment Health Assessment is of record. There were no complaints and no referrals indicated. There is no Report of Medical Examination or Report of Medical History of record from separation. Years later, the Veteran made contact with VA on March 12, 2009 stating that he needed to file a claim. A June 2, 2009 VA Primary Care Note from the Oklahoma City VA Medical Center (VAMC) reads in part, “Statement of medical and mental health issues/problems/injuries incurred during active duty: prolonged severe back pain, as result of service in Afghanistan.” A June 22, 2009 VA treatment record shows that the Veteran should seek care for his back issues. Ongoing VA treatment records show complaints of low back pain. Next, a private treatment record from Dr. T. Q. dated May 10, 2016 from Air Depot Family Medicine Urgent Care is of record, received by VA on June 17, 2016. It shows complaints and impressions of back and knee pain. Imaging confirmed related pathology. The following year, in March 2017, the Veteran was afforded a set of VA examinations with medical opinions for the right knee and back. For the back, the VA examiner, T. S-B., NP., rendered a negative nexus opinion. The VA examiner reasoned: Review of the claims file shows degenerative conditions of the lower spine. The diagnosis was made in 2016 by MRI. There is no chronicity or continuity of care over a 9 year period from service discharge. There is no evidence of treatment for back injury while in the service. At the time of discharge the patient had no complaints and was in “good health.” It is NOT likely the disability is due to a fall from a helicopter while in service. Nexus cannot be established. Similarly, the VA examiner rendered a negative nexus opinion for the right knee. The VA examiner opined: Review of the claims file shows degenerative conditions of the right knee. The diagnosis was made in 2016 by MRI. There is no chronicity or continuity of care over a 9 year period from service discharge. There is no evidence of treatment for a knee injury while in the service. At the time of discharge the patient had no complaints and was in “good health.” It is NOT likely the disability is due to a fall from a helicopter while in service. Nexus cannot be established. The following month, in April 2017, the Veteran perfected his appeals. Next, on August 28, 2019, the Veteran through his attorney submitted copies of ongoing private treatment records from years after separation. Page 3 of 27 shows that at least some are from Fountain Park Family Physicians. On page 2 of 27, there is an assessment and plan showing chronic low back pain, with related medication. The impressions were chronic low back pain. An MRI showed severe narrowing of the right neural foramina at L4-L5 with mild narrowing noted at L3-L4. There was additional back pathology. The Veteran’s right knee had chondromalacia patella nad patellofemoral syndrome tracking problems. TI shows that the Veteran had moderate sized joint effusion in 2016, and reported knee pain. Another page shows chronic low back pain with related medication, as signed by Dr. L. A. K. Additional VA and private treatment records are from Servant Medical Imaging. Based upon imaging, there were impressions of right knee and lumbar spine pathology from after separation. Ongoing private treatment records show impressions of and treatment for a lumbar spine and right knee disability. The issue remained a nexus. Later, on May 28, 2020, the Veteran through his attorney submitted a Brief along with lay evidence, argument, and a private medical opinion from Dr. M. On page 2, the Veteran explains that he was subjected to almost daily jumps with a 130 pound heavy backpack from a helicopter in extreme mountain conditions. Due to the terrain, helicopters hovered about 10 feet off the ground and soldiers jumped. During one such jump, the mountain was so sheer and steep that he rolled head over heels about 20 to 25 feet. When he finally stopped, he had severe pain in his right knee due to striking it against rocks, and extensive pain in his low back. This occurred on June 23, 2006 when his platoon was mixed in as part of five teams consisting of both Army rangers and regular army. He was given injections of Toradol. Significantly, on page 4 of the Brief, is a May 2020 private medical opinion from Dr. D. M. Dr. M. performed a 50 minute clinical interview with the Veteran and included pages of lay evidence and medical evidence from the claims file cited in support of his findings. The Veteran reported that upon returning stateside, he only had six weeks left of active duty. So, he told the examiner that he was just fine and wanted to go home. Dr. D. M. reviewed post service evidence showing complaints of and treatment for back and knee pain. He rendered positive nexus opinions for direct service connection for the back and the right knee. Dr. M. cited to various articles and other medical literature. Later, a September 2020 Brief highlighted substantially similar evidence. In September 2020, the Veteran testified before the undersigned VLJ. His testimony was substantially the same as articulated in the May 2020 Brief. He described his experience in service: So with that being said, we had numerous missions where we would infill from rotary wing as Ms. Murphy already described, and we, on average, were going out for two or three weeks at a time, so we would pack as so. The life of light infantry is you have to carry everything in and carry everything out. There’s no mechanized vehicles. There’s no Humvees. You get in by helicopter. You get out by helicopter. So that being said, you’re talking 110, 120 pounds just in your ruck. That's not your rig, all the magazines and grenades and everything else on the front of you. With me being an 11 Charlie, I also jumped in with a mortar system. So it’s an insurmountable amount of weight that you are jumping from an aircraft into a steep grade, so physics will explain that question. You jump out with a bunch of weight into a steep grade, not flat ground, up and down. These aircraft were afraid of sitting down in lieu of smaller-inspired RPGs, so they would hover so we could exfil the aircraft onto location so they wouldn't be shot down by rocket-propelled grenades, as explained by Ms. Murphy. So you got to jump out with everything that you have, and that’s pretty taxing on your body. You’re not just jumping out with no weight. You’re jumping out with about a 250-pound guy on your back. So you take all that weight and you jump out of an aircraft10, 12 feet, and then you smash into the earth, and wherever you stop, is where you stop. That’s –that’s all I – really… Yeah, I --actually that was the start of the mission. That was 6/23 of ‘16,we had infilled. A bunch of my friends had been ambushed by a 60-man element. So we had gone to take care of that. We had jumped out of the aircraft. About 20 of us had all done the same thing. Multiple of those guys had got injuries. I had jumped out and, obviously, at the grade that I was landing on, wasn't conducive to a --a happy ending. So I tumbled, and I --in --in travel of my tumble, landed on a sharp rock with my knee. You’re talking end over an end, so there's no stopping. The only thing that stops you is earth, trees, boulders, stuff like that. Well, throughout that travel of fall, I landed on a sharp, pointed rock. That’s what my knee hit. The only thing that stopped me was about a 60-inch tree that was on the mountainside. Otherwise, I probably would’ve just kept tumbling down the mountain until -- --momentum stopped. So, it’s definitely treacherous terrain. I'm just fortunate to --fortunate to be here. See September 2020 Hearing Transcript, pp. 10-11. Later, the Veteran clarified that he did not seek further treatment beyond painkillers because it was frowned upon to seek medical attention at the time. Id. at p. 13. The Veteran detailed his current impairment and pain affecting the back and knee. Previously, the Veteran’s attorney noted that the negative nexus opinion from March 2017 incorrectly documented that there was no continuity of care. She highlighted that the Veteran made contact with VA in 2009, so within 18 months after separation. Id. at pp. 5-7. The Veteran contends that he is entitled to service connection for a back disability, claimed as a lumbar strain, and a right knee disability. He cites detailed lay evidence and continuity of symptomatology in support of his claims. The Veteran is competent to report chronic back pain. The Veteran is competent to provide evidence of that which he experiences, including a history of injury following helicopter jumps in service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to relate what he has been told by a professional. He is competent to report when he began receiving treatment for the back and right knee. He is competent to report that back and knee pathology have been identified by imaging. He has a positive nexus opinion from Dr. M. citing to lay and medical evidence in the claims file. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds these reports to be credible. Regarding this lay evidence, the Board highlights 38 U.S.C. § 1154 (b), which provides that for any veteran who engaged in “combat” with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred in or aggravated by such service even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. Sizemore v. Principi, 18 Vet. App. 264 (2004). The record indicates the Veteran served in Afghanistan, where he engaged in combat. The Board thus finds that the second prong of service connection, an in-service incurrence or aggravation of a disease or injury, and in this case pursuant to the combat presumption language of 38 U.S.C. § 1154 (b), to be satisfied. Moreover, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the most probative evidence of record is the Veteran’s self-reported history as to the onset of his right knee and back disabilities in service, the contemporaneous treatment records, including MRI imaging, and the positive nexus opinions from the May 2020 private examiner, Dr. M. Indeed, the Veteran competently and credibly reported when he first experienced back pain and right knee pain due to an injury in service, resulting in functional impairment that has continued to this day. The Veteran described, “You jump out with a bunch of weight into a steep grade, not flat ground, up and down. These aircraft were afraid of sitting down in lieu of smaller-inspired RPGs, so they would hover so we could exfil the aircraft onto location so they wouldn’t be shot down by rocket-propelled grenades, as explained by Ms. Murphy. So you got to jump out with everything that you have, and that’s pretty taxing on your body. You’re not just jumping out with no weight.” See September 2020 Hearing Transcript, p. 10. He described hitting a rock with his right knee after a tumbling down a hill, injuring his back. Id. at p. 7. The Board has also considered the consistency of the Veteran’s reports regarding the onset of the disabilities from the injury during service to establishing care with VA not long after separation. He testified that he has experienced continuous lower back and knee impairment, including due to pain, ever since the injury in service in 2006. This history was competently documented as told to Dr. M. and the Veteran’s attorney. The Veteran also credibly explained the reason for the remote filing of his claim years after separation. See September 2020 Hearing Transcript, p. 13. Regarding the contemporaneous treatment records, VA and later private treatment records show complaints of back and knee pain, followed by pathology confirmed via imaging. They show reports of continuous back and right knee pain. Therefore, the Board assigns substantial probative weight to the contemporaneous treatment records, showing continuity of complaints of and treatment for lower back and right knee pain. Next, the May 2020 private medical opinion from Dr. M, a physician, shows that the entire claims file was reviewed. It shows that there were injuries in service, with later pathology identified after separation. The private examiner ultimately rendered positive nexus opinions with extensive citations to medical evidence, lay evidence, and medical treatises. We assign substantial probative weight to these positive nexus opinions. To the extent the March 2017 VA examination could be construed as finding against a relationship to service, the examination does not address the Veteran’s competent lay reports of continuous impairment due to pain. It did not consider much of the additional evidence showing a continuity of symptomatology and diagnostic imaging documenting disability from not long after the Veteran established care with VA in 2009. Consequently, the VA examiner’s negative nexus opinions are entitled to diminished probative weight. Beyond documented pathology, there is credible lay evidence of continuity. We have specifically considered that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” This is relevant to this case in as much as the Veteran reported a back and knee injury, even though there was no contemporaneous imaging diagnosing a musculoskeletal disability. At the very least, the evidence of record is in relative equipoise as to the onset of the Veteran’s residuals of lower back and right knee injuries resulting in disability. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s lumbar strain disability and right knee disabilities were incurred in service. He has had a lumbar strain disability and a right knee disability continuously since service. We note the constancy of the Veteran’s reports of back and right knee pain throughout the appeals period. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. §§ 1154 (b), 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). Accordingly, service connection for a lumbar spine disability and a right knee disability is warranted. 38 C.F.R. § 3.303 (d). Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching these conclusions, the benefit of the doubt rule has been favorably applied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.