Citation Nr: 21011509 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-21 391 DATE: March 2, 2021 ORDER Entitlement to service connection for a back disorder, diagnosed as degenerative disc disease is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a back disorder, diagnosed as degenerative joint disease is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, a current back disorder, diagnosed degenerative disc disease, is related to his military service. CONCLUSION OF LAW The criteria for service connection for back disorder, diagnosed degenerative disc disease, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1994 to May 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2019, the Board reopened the claims for service connection for a back and right knee disorder. In this regard, the case was remanded for additional development and it now returns for appellate review. The Board notes that additional evidence has been associated with the record since the July 2020 supplemental statement of the case; however, such evidence is irrelevant to the case on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a back disorder, diagnosed as degenerative disc disease. The Veteran contends that he has a back disorder as a result of his military service. Specifically, he contends that such disorder is due to an in-service motorcycle accident and his military occupation specialty as a damage control firefighter. As an initial matter, the Board notes that the record reflects a current back disorder. Specifically, a February 2020 VA examiner diagnosed the Veteran with degenerative disc disease and degenerative joint disease. Additionally, the Veteran’s service treatment records reveal that he was in a motorcycle accident in June 1997, and he was thrown over the divider and the accident resulted in multiple abrasions and contusions. Furthermore, in an October 1998 VA examination, the Veteran reported that he developed pain in his back after a motorcycle injury in 1997 and such pain continued with chronic symptoms since the accident. Additionally, VA treatments records show that, in April 2001, the Veteran complained of back pain. Moreover, January 2012 VA treatment records indicate that the Veteran had a history of lower back pain and flares since an injury in the late 1990s. Notably, April 2014 VA treatment records show that he had a diagnosis of lower back pain with chronic degenerative endplate signal seen in the L5-S1 endplate marrow. Therefore, the remaining inquiry is whether the Veteran’s back disorder is due to his military service. In accordance with the March 2019 Board remand, the Veteran was afforded a VA examination in February 2020. At such time, the examiner concluded that it was at least as likely as not that the Veteran’s degenerative disc disease was incurred in or caused by the back during service. As rationale, the examiner explained that the Veteran complained of chronic back pain at his October 1998 VA examination, which was just 5 months post-discharge from his military service. The examiner also noted that a March 2000 treatment noted showed that he had early degenerative disc disease changes, which was generally chronic in nature. The examiner further explained that there was also multilevel facet arthropathy (degenerative joint disease), which was a new finding since the 2014 MRI. However, the examiner stated that the degenerative joint disease was not specifically due to the degenerative disc disease, but it was more likely due to aging and wear and tear. In the absence of other explanation, the examiner opined that the degenerative disc disease was related to the back condition that was noted shortly after service. However, the examiner concluded that the degenerative joint disease was less likely than not incurred in or caused by service. With regards to the February 2020 VA examiner’s opinion pertaining to the Veteran’s degenerative disc disease, the Board accords great weight to the such opinion as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his back disorder, diagnosed as degenerative disc disease, was incurred as a result of an in-service injury. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. However, the theory of degenerative joint disease as secondary to his service-connected degenerative disc disease has been reasonably raised by the February 2020 VA examiner’s opinion and it will be discussed in the remand section. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disorder. In the March 2019 Board remand, the RO was requested to obtain a VA examination and opinion for the purpose of determining whether the Veteran’s right knee disorder was related to his military service, to include his in-service motorcycle accident, his military duties, and his in-service right knee injury. In offering such opinion, the examiner was instructed to consider the Veteran’s reports of right knee pain since service, which is documented in his VA treatment records. In accordance with the March 2019 Board remand, the Veteran was afforded a VA examination in February 2020. At such time, the examiner concluded that it was less likely than not that the Veteran’s right knee degenerative joint disease and right knee meniscal tear status post arthroscopic meniscus surgery were incurred in or caused by the right knee during service. As rationale, the examiner explained that the Veteran’s current knee condition was related to his medial meniscus tear and degenerative joint disease noted on his arthroscopic surgery in 2014. The examiner further explained that, the Veteran’s current knee condition was different from his mild right knee complaint in 1998, which was suspected to be patellar chondromalacia. The location and nature of the right knee complaint was different in 1998 than 2014 (and currently). Also, the examiner explained that, the emergency room note from the 1997 motorcycle accident does not mention a right knee injury. However, the Board finds that a remand is necessary. In this regard, the examiner did not address the Veteran’s complaints of right knee pain since his separation from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). In this regard, in an October 1998 VA examination, the Veteran reported that he developed pain in his right knee after a motorcycle injury in 1997 and such pain continued with chronic symptoms since. Additionally, VA treatments records show that, in April 2001, the Veteran complained of knee pain. In June 2003, he stated that he had knee pain and locking for years, and in September 2004, he reported that his chronic knee problem was related to military when he fell on stairs in an aircraft carrier. Moreover, a March and April 2014 private treatment records reveal that the Veteran reported that he developed right knee pain over 16 years ago while in service. Therefore, an addendum opinion addressing such matter is necessary to decide the claim. 3. Entitlement to service connection for a back disorder, diagnosed as degenerative joint disease. As stated above, the theory of degenerative joint disease as secondary to his service-connected degenerative disc disease has been reasonably raised by the February 2020 VA examiner’s opinion. In this regard, the examiner concluded that the degenerative joint disease was less likely than not incurred in or caused by the back during service. However, the examiner stated that the degenerative joint disease was not specifically due to the degenerative disc disease, but it was more likely due to aging and wear and tear. Thus, an addendum opinion is necessary to determine Veteran’s degenerative disc disease was proximately due to or aggravated by his service-connected degenerative disc disease. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the Veteran’s February 2020 VA examination. The record and a copy of this Remand must be made available to the examiner. If the February 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the examiner. Following a review of the record, please address the following inquiry: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s right knee disorder had its onset in, or is otherwise related to any injury or event, during service, to include his in-service motorcycle accident, his military duties, and his in-service right knee injury? The examiner must address the Veteran’s statements and history regarding the etiology and continuity of symptoms. In offering an opinion, the examiner must consider that the Veteran is competent to his in-service physical activities and in-service knee symptoms and the continuity of his symptomatology he perceives since service. In this regard, in an October 1998 VA examination, the Veteran reported that he developed pain in his right knee after a motorcycle injury in 1997 and such pain continued with chronic symptoms since. Additionally, VA treatments records show that, in April 2001, the Veteran complained of knee pain. In June 2003, he stated that he had knee pain and locking for years, and in September 2004, he reported that his chronic knee problem was related to military when he fell on stairs in an aircraft carrier. Moreover, a March and April 2014 private treatment records reveal that the Veteran reported that he developed right knee pain over 16 years ago while in service. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s back disorder, diagnosed as degenerative joint disease, was proximately due to or aggravated by service-connected degenerative disc disease? The term “aggravation” in the above context refers to any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.