Citation Nr: 21013516 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-01 154 DATE: March 9, 2021 ORDER 1. Entitlement to service connection for a low back disability is granted. 2. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. Competent medical evidence establishes that the Veteran’s low back disability was incurred during his active service. 2. A chronic right knee disability was not manifested in service; right knee arthritis was not manifested within a year following the Veteran’s separation from active duty; and his current right knee disability is not shown to be etiologically related to his service/injury therein. CONCLUSIONS OF LAW 1. Service connection for a low back disability is warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for a right knee disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1959 to August 1980. These matters are before the Board on appeal from a September 2014 rating decision. In October 2019, a videoconference Board hearing was held before the undersigned; a transcript is in the record. In February 2020, the Board reopened these claims and remanded them for additional development. The Board’s February 2020 remand also addressed a claim of service connection for a left shoulder disability. A January 2021 rating decision granted the Veteran service connection for a left shoulder disability, resolving that matter. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309(a) (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1112, 1137. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that he injured his back and right knee in a fall from a helicopter during service, in 1967. He has related that comrades pulled him into a more secure area because they were under fire, but because they were on a mission that lasted for several days, he was unable to seek medical care at the time, but was given pain medication by a medic in his unit. He stated that he was seen by doctors when he returned to his base camp. He stated that after he was placed on light duty/no duty at Fort Hood in 1968, and continued to be assigned light duties through the remainder of his service until he retired in 1980. The Veteran’s STRs show that in October 1962, he injured his right knee playing football; he received conservative treatment and there was no further follow-up for this injury. In July 1967, he was air evacuated from Vietnam to Camp Zama with a diagnosis of chronic prostatitis. He was noted to have had multiple dispensary and hospital visits since December 1966 for vague left lower quadrant, inguinal, scrotal testicular, and left anterior hip pain, which was treated as prostatitis without significant change in complaints; the pain was persistent and not necessarily altered by physical activity. Lumbar spine X-rays were unremarkable. It was felt that the diagnosis on admission of chronic prostatitis was somewhat tenable without more objective findings on physical and with a paucity of urinary tract symptoms. He was referred to orthopedics after appropriate X-rays and got some specific relief from xylocaine injections to the region of the left greater trochanter. It was the feeling of the orthopedic service that this relief was nonspecific and that the Veteran’s complaints were difficult to explain and nonspecific. He was discharged to full duty with continuing complaints without objective findings. Also in July 1967, he was seen for physical therapy with instruction in back flexion exercises, but this was temporarily discontinued due to increased back problems. Upon his return from deployment in January 1968, he sought treatment for back pain. In May 1968, it was noted that he had been seen for back pain 15 times during the previous 5 months, and was restricted to quarters and placed on light duty numerous times. On February 1976 service examination, the spine and lower extremities were normal on clinical evaluation; in a contemporaneous report of medical history, the Veteran denied any history of recurrent back pain; painful or “trick” elbow; “trick” or locked knee; bone, joint or other deformity; or arthritis, rheumatism, or bursitis. A service separation examination is not available for review. The Veteran’s DD 214s show that during his deployment to Vietnam, he served in an infantry unit. Postservice VA records note treatment for low back pain and right knee pain from 2006 with assessments of chronic lumbalgia with associated myofascial component, and mild spondylosis of the lumbosacral region. February 2006 lumbosacral spine X-rays were normal, and knee X-rays revealed mild degenerative joint disease bilaterally. On April 2007 VA examination, the Veteran reported that he fell from a helicopter in Vietnam in 1976 and injured his back. He reported having constant aching pain in the lower back and both hips. Following a physical examination, the diagnosis was lumbosacral strain. The examiner opined that the Veteran had believable low back pain but no demonstrable abnormality, noting that he had gone for many years since his military service without [documented] complaints of chronic back pain. The examiner opined that although this is not proof positive that he did not have back pain, it is less likely, and for this reason it is less likely than not that his back pain in service is related to what was happening with his back on examination. On May 2007 VA examination, the Veteran reported that he had worked in the warehouse infantry transportation, shipment of privately owned vehicles to the overseas, and in personnel. He reported that he fell from a helicopter in Vietnam in 1967 from a height of about 25 feet; he fell forward and had developed low back pain. He stated that the incident happened in the jungle and was never reported. He reported that he developed low back pain but because medical care was unavailable, he did not seek any medical attention at that time, spending 4 months in the jungle. He reported that in June 1967, he went to Camp Zama in Japan for treatment of low back pain, which was then diagnosed as a prostate infection. Following physical examination, the current diagnosis was lumbosacral strain. The examiner noted that even though the Veteran has subjective chronic low back pain since military service and a fall from a helicopter in 1967, he has a diagnosis of chronic prostatitis, which is treated with medication. The examiner noted that per the Veteran the diagnosis of prostatitis was made at Camp Zama in 1971, while he was in service. The examiner opined that for this reason it is less likely as not that the Veteran’s back pain in service is related to current complaints of back pain. On June 2013 VA examination, the Veteran related that in 1966 he fell about 30 feet out of a helicopter in Vietnam with full combat gear, injuring his back and both knees; he related that a medic gave him some pain medication, and he continued to fight. The examiner noted that no fracture or knee surgery was ever noted. The Veteran related that when he returned to the U.S., he was placed on light duty and changed his MOS from infantry to transportation inspector because of his injuries. He reported that he went to physical therapy. He reported that his right knee had worsened recently to the same severity [of pain] as his left knee. Following physical examination, the diagnosis was osteoarthritis of both knees, with a 2006 date of diagnosis based on X-ray findings. The examiner noted that there is no record in the STRs of the Veteran falling from a helicopter, but that he was seen for shoulder and back problems, with no documented medical visit for the right knee. The examiner opined that the claimed right knee condition is less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected left knee condition. The examiner opined that osteoarthritis of one knee does not cause the other knee to have osteoarthritis and noted that the Veteran’s increasing age and obesity are the strongest risk factors for his developing knee osteoarthritis, noting that when one knee develops ostearthritis, the other one will usually develop it within 10 years. The examiner opined that a previous injury (such as a fall from a helicopter in Vietnam) may have started this process, but the available STRs do not mention such incident, and the Veteran also did not seek care for his right knee during service nor did he mention any right knee problems on his separation physical. In August 2013, the Veteran submitted a “buddy” statement from a fellow serviceman whom he met in September 1967 when he returned from Vietnam and was assigned to an infantry unit at Fort Hood. The fellow serviceman stated that the battalion doctor placed the Veteran on very light duty, with no field duty or physical training of any kind, due to his reported injuries sustained falling from a helicopter. He stated that the Veteran removed himself from the position of platoon sergeant to spend more time dealing with his health problems, and in about August 1968 was reclassified from infantry and given a new MOS of movement specialist. On October 2020 VA examination, the Veteran reported that he fell from a helicopter, about 20 to 30 feet, injuring his back and knees. He reported that his injuries were not initially addressed or treated other than by a field medic because he was in a combat zone. He related that he spent 40 days at Camp Zama, Japan for s injuries sustained in that incident, and that fractures of the knees were not diagnosed, but osteoarthritis was diagnosed. The examiner (a nurse practitioner in family medicine) observed that osteoarthritis can stem from trauma and overuse, and that it is unlikely that documented records from the incident described by the Veteran were kept, since it was during combat, however it is likely that the injuries were sustained in the fall from the helicopter as described by the Veteran. Following physical examination, the diagnoses included right knee patellofemoral syndrome diagnosed in 2006, and degenerative arthritis diagnosed in 2011; and degenerative arthritis of the spine diagnosed in 2008, and lumbosacral spondylosis without myelopathy diagnosed in 2019. Regarding the right knee, the examiner opined that the claimed disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted there were no complaints of right knee issues during service, and that no evidence was found in the claims file that the knee pain was caused by the fall from the helicopter; in the handwritten records, there was no statement regarding a fall from a helicopter. The examiner opined noted there is evidence of chronicity of care and symptoms about 26 years after the Veteran retired from active duty. The examiner explained that degenerative arthritis of the knees is generally [due to] aging of the joints as well as a possible response to a traumatic event, such as a fall. The examiner opined that, given that the claimed incident was a fall from a helicopter, it is possible that a knee strain occurred leading to early degeneration of the joints, and it is also plausible to have years of recurrent pain due to not being able to rest after the injury due to being a combat zone. The examiner opined that the Veteran’s sworn statement of the event is likely true, however she could not give the medical opinion that the right knee disability occurred related to this event because there is no physical evidence that such event occurred. The examiner opined that it is less likely as not that the right knee degenerative joint disease (DJD) occurred in service; it is less likely as not that arthritis manifested within one year after discharge from service, noting a 2011 X-ray showing [only] early to moderate arthritis; it is less likely as not that the Veteran had chronic symptoms during service as postservice complaints are not documented until almost 26 years after service; and it is less likely than not that right knee DJD is due a fall from a helicopter as described by the Veteran. The examiner opined that a nexus has not been established. Regarding the low back, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that there is evidence in the STRs that during service low back pain existed and that the Veteran sought treatment, yet the examiner found no evidence in the claims file that the back pain was caused by the fall from the helicopter. The examiner noted that the Veteran had multiple appointments with complaints of low back pain starting in 1967, yet in the handwritten treatment records there was no statement regarding a fall from a helicopter. The examiner noted that there is evidence of chronicity of care that started almost 30 years after the first complaints of lumbar back pain/low back disability; degenerative arthritis of the spine was diagnosed in 2008, and lumbosacral spondylosis without myelopathy was diagnosed in 2019. The examiner opined that degenerative arthritis of the spine and lumbosacral spondylosis is generally the same diagnosis, and can be due to both natural aging of the joints as well as a response to a traumatic event, such as a fall. The examiner opined that, given that the claimed incident was a fall from a helicopter, it is very likely that a lumbar strain occurred leading to early degeneration of the spine, and it is also plausible to have years of recurrent pain due to not being able to rest after the injury due to being a combat zone. The examiner opined that there is evidence of chronicity of care and radiological evidence of lumbar spine degenerative arthritis. The examiner opined that the low back disability is service connected but there is no written evidence in the claims file that it occurred by falling from a helicopter during service. The examiner opined that it is less likely as not that the lumbosacral spondylosis without myelopathy and degeneration of the spine occurred in service; it is less likely as not that arthritis manifested within one year after discharge from service, noting the 2008 lumbar x-ray showing minimal arthritis; and it is least likely as not that the Veteran has chronicity of symptoms during service as well as after the service. The examiner opined that it is less likely than not that lumbosacral spondylosis without myelopathy and degeneration of the spine occurred with a fall from a helicopter as described by the Veteran. The examiner opined that the Veteran’s sworn statement of the event of the fall from a helicopter is likely true, however she could not give the medical opinion that the low back pain or injury occurred related to this event due to no physical evidence of the event taking place. The examiner opined that a nexus has not been established. In a December 2020 addendum opinion, a reviewing provider (a physician assistant in family medicine) clarified that there is no evidence of low back injury from a helicopter incident, and there is a big gap between the Veteran’s separation from service and treatment of a back condition that points toward the back injury sustained during service is less likely than not due to service. The reviewing provider opined that a nexus has not been established. 1. Service connection for a low back disability is granted. The Board finds particularly noteworthy that the Veteran has a Combat Infantryman Badge (which entitles him to consideration under the relaxed evidentiary standards under 38 U.S.C. § 1154(b)). The incident he describes as the cause of his back disability is consistent with the circumstances of his combat service in Vietnam, where transport by helicopter – and dropping to the ground from a hovering helicopter – was common. There is also clear documentation that he had back complaints/problems in service. What remains necessary to substantiate this claim is evidence that he has a current back disability, and that the disability is related to his service/injury therein. The Board notes the December 2020 VA reviewing provider’s addendum opinion that there is no evidence of low back injury from a helicopter incident in the STRs; however, under 38 U.S.C. §1154(b), and given what the evidence in the record shows, it may readily be conceded that a fall such as the Veteran describes, with injury to the back occurred. It is noteworthy that the Veteran was seen on multiple occasions for back pain in service, which was initially (and later) attributed to prostatitis, but no specific such chronic disorder was ultimately diagnosed. He continued to be treated with pain medication, which would have addressed pain due to both back pathology, and other, pathology. The October 2020 VA examiner’s opinion (which is supported by much greater explanation of rationale than the December 2020 opinion) indicates that it is “very likely” that the Veteran developed a lumbar strain due to a fall injury as described, leading to an early degenerative process. Although the examiner opined that it is less likely as not that the Veteran’s current back disability is due to an injury in service because the injury itself is not documented, the examiner further noted that it is plausible to have years of recurrent pain due to not being able to rest after the injury in a combat zone. Given the acknowledgement by the Board that the reported injury occurred; the explanation by the October 2020 examiner that the accounts of recurring pain in the interim are plausible; and the opinion that it is “very likely” that the injury in service caused a lumbar strain which in turn resulted in an early degenerative process; and that the Board has, the Board has no reason to question the expertise of VA’s opinion provider, the Board finds that medical evidence of record reasonably supports that the Veteran’s current low back disability is etiologically related to an injury in service (was incurred therein). Resolving any remaining reasonable doubt in the Veteran’s favor, the Board concludes that all the requirements for establishing service connection are met, and that service connection for a low back disability is warranted. 2. Service connection for a right knee disability is denied. It is not in dispute that the Veteran has a current right knee disability (as right knee patellofemoral syndrome and right knee degenerative arthritis have been diagnosed on VA examination). However, a chronic right knee injury or disease in service is not shown, and arthritis of the right knee is not shown to have been manifested within a year following his separation from service. The STRs are entirely silent for right knee complaints, findings, treatment, or diagnosis. The earliest (documented in the Veteran’s claims file) notation of a right knee pain complaint is in February 2006. Consequently, service connection for a right knee disability on the basis that it became manifest in service, or on a chronic disease presumptive basis (for arthritis) is not warranted. Considering the earliest documentation of right knee complaints in 2006, continuity of a right knee disability is not shown, and service connection based on continuity of symptomatology is also not warranted. Whether under such circumstances a current right knee disability may be etiologically related to the Veteran’s remote service, including as due to physical activities or related to an unreported and untreated complaint therein, is a medical question. It requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran is a layperson, does not profess to have medical expertise, and has not submitted a medical opinion that supports his claims. The October 2020 VA examiner opined that the Veteran’s current diagnosed right knee disability is less likely than not related to an injury, disease, or event in service. The examiner is a medical professional and the opinion is probative evidence in this matter; it reflects familiarity with the Veteran’s medical history and include rationale that cites to supporting factual data. It is the most probative competent (medical) evidence in this matter. The VA examiner’s opinion against the Veteran’s claim addressed his reports of continuity of symptoms (and found them inconsistent with clinically recorded data), and identified other causes for his right knee disability including the aging process and obesity. While the VA examiner opined that it is plausible that right knee degenerative joint disease would be due to trauma such as the Veteran reports (and the Board acknowledges that a fall injury occurred), the provider found it less likely than not such trauma was indeed the cause of the current right knee disability based on the lack of notation of knee complaints, injury, or abnormal findings (particularly after the incident occurred) for decades after the Veteran’s separation from service, and that therefore the other known causes for knee degenerative joint disease are more likely in this case. While the Board has no reason to question the Veteran’s sincerity in his belief that his current right knee disability is related to an injury or activities in service, because he is a layperson, his opinion is not competent evidence in the matter, and has no probative value (and he has not submitted any medical opinion or treatise evidence in support of his asserted theory of entitlement). Therefore, the Board finds the VA examiner’s opinion persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal seeking service connection for a right knee disability must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.