Citation Nr: 21013776 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-28 752 DATE: March 10, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine, s/p L5-S1 fusion is granted. Entitlement to service connection for right ankle musculoligamentous strain is granted. Entitlement to service connection for left ankle musculoligamentous strain is granted. Entitlement to service connection for right knee osteoarthritis is granted. Entitlement to service connection for left knee osteoarthritis is granted Entitlement to service connection for right hip disability is granted. Entitlement to service connection for left hip disability is granted. Entitlement to service connection for bilateral flat foot is granted on an aggravation basis. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current back disability is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran’s current right ankle disability is related to service. 3. The evidence is at least evenly balanced as to whether the Veteran’s current left ankle disability is related to service. 4. The evidence is at least evenly balanced as to whether the Veteran’s current right knee disability is related to service. 5. The evidence is at least evenly balanced as to whether the Veteran’s current left knee disability is related to service 6. The evidence is at least evenly balanced as to whether the Veteran’s current right hip disability is related to service. 7. The evidence is at least evenly balanced as to whether the Veteran’s current left hip disability is related to service. 8. The Veteran’s preexisting flat foot disability, noted at entry into service, worsened during service, and the evidence does not clearly and unmistakably show that the worsening was due to the natural progress of the disease. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine, s/p L5-S1 fusion have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right ankle musculoligamentous strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left ankle musculoligamentous strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for left knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for right hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for bilateral flat foot have been met on an aggravation basis. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to August 1962. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Board apologizes for the lengthy delay between the date of the hearing and issuance of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2019). 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). 1. Back In this case, the Veteran has met the current disability requirement. Specifically, an October 2015 VA examination report shows a diagnosis of degenerative disc disease of the lumbar spine, s/p L5-S1 fusion. Thus, the first element for service connection has been met. The evidence of record indicates that the in-service injury requirement has been met. Service treatment records (STRs) shows complaints and treatment for the Veteran’s back in October 1960 and March 1961, with diagnoses of low back pain and muscular strain noted. At the Veteran’s November 2019 Board hearing, he testified that his back was fine prior to service, he experienced back symptome in service, and his symptoms has continued since service. Based on the evidence contained in the Veteran’s STRs and his competent and credible statements, the Board finds that the second element of service connection has been met. In October 2015, the Veteran underwent a VA examination. He reported that in 1960 he developed low back pain while lifting heavy objects and was diagnosed with muscle strain. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran’s STRs document a single visit to sick call on October 26, 1960 for low back pain after lifting a heavy object. He was diagnosed with muscle strain. The Veteran had no further visits to sick call, and his separation examination dated July 12, 1962 is silent with regard to any back problem. The examiner further explained that the Veteran spent 37 years after service as a power lineman, climbing poles with spiked shoes, and in April 2014 he underwent an L5-S1 fusion for sciatica with relief of the sciatica and improvement in his back pain. The examiner noted that given the 37 year history of work as a power lineman, it is more likely than not that his current degenerative disc disease of the lumbar spine is related to his civilian occupation rather than to a single episode of back muscle strain in service 55 years ago. In this case, the Board finds that the October 2015 VA opinion that the Veteran’s back disability is not related to service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the VA examiner rendered the opinion that the Veteran’s back disability was not related to service, because the STRs showed a single episode of back strain in October 1960, and there were no further visits to sick call. However, the STRs reflect that the Veteran also received treatment for low back pain in October 1961. Additionally, the examiner failed to consider competent and credible statements of back symptoms in and since military service. The current diagnosis, STRs, indicating symptoms, the competent and credible lay statements of back symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran’s back disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s back disability had its onset in service. Thus, resolving reasonable doubt in the Veteran’s favor, service connection is warranted for degenerative disc disease of the lumbar spine, s/p L5-S1 fusion. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Right Ankle and Left Ankle In this case, the Veteran has met the current disability requirement. Specifically, an October 2015 VA examination report shows a diagnosis of bilateral ankle musculoligamentous strain. Thus, the first element of service connection has been met with regard to each claim. The evidence of record indicates that the in-service injury requirement has been met. The Veteran’s STRs shows treatment for ankle sprain in October 1961 with the specific ankle not identified. At the Veteran’s November 2019 Board hearing, he testified that he experienced right and left ankle symptoms in service, and his symptoms has continued since service. Based on the evidence contained in the Veteran’s STRs and his competent and credible statements, the Board finds that the second element of service connection has been met for each claim. In October 2015, the Veteran underwent a VA examination. He reported that he sprained both ankles in service as a telephone lineman and was seen in sick call in October 1961 for ankle sprain. The examiner opined that the Veteran’s bilateral ankle disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran’s STRs document a single visit to sick call on October 3, 1961 for ankle sprain, although the specific ankle was not identified. There were no other entries, and the separation examination in July 1962 was silent with regard to any ankle problems. The examiner further explained that the Veteran spent 37 years after service as a power lineman, climbing utility poles, and admitted that the job was difficult on his ankles. The examiner noted that current x- rays dated in October 2015 show normal ankles without evidence of degenerative arthritis. The examiner indicated that the Veteran’s bilateral ankle condition more likely than not is related to his 37 years as a power lineman rather than to a single ankle sprain in service 54 years ago. In this case, the October 2015 VA examiner opined that the Veteran’s right ankle and left ankle are not related to service. The examiner, however, failed to consider competent and credible evidence of the Veteran’s report of the onset of his bilateral ankle symptoms in service, and the continuation of those symptoms in the years since service. Thus, the Board finds the October 2015 VA opinion of little, if any probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence ). The STRs, competent and credible lay statements of right and left ankle symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran’s right ankle and left ankle are related to service. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran’s right and left ankle disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran’s favor, service connection is warranted for right ankle and left ankle disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ); 38 3. Right Knee and Left Knee In this case, the Veteran has met the current disability requirement. Specifically, VA clinical records shows a diagnosis of right and left knee osteoarthritis. Thus, the first element of service connection has been met with regard to each claim. The evidence of record also indicates that the in-service disease requirement has been met. As a preliminary matter, STRs do not include any knee complaints or treatment. At his November 2019 Board hearing, the Veteran testified that he experienced right and left knee symptoms in service and he has continued to experience bilateral knee symptoms since service. As the Veteran has indicated that he had symptoms during service and these statements are competent and credible, this is sufficient to establish the second element of service connection for each claim. In addition, the Veteran’s testimony indicating symptoms in and since service, combined with the diagnosis of right knee and left knee osteoarthritis, is sufficient to establish that the Veteran’s right knee and left knee osteoarthritis had their onset in service. Buchanan, 451 F.3d at 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ); 38 C.F.R. § 3.303(a) (service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). There is no evidence to the contrary. For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s diagnosed right knee and left knee osteoarthritis had its onset in service. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for right knee and left knee osteoarthritis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Right Hip and Left Hip In this case, the evidence of record indicates right hip and left hip disabilities. For example, a May 2012 VA clinical record shows complaints and treatment for hip pain. At his November 2019 Board hearing, the Veteran reported functional impairment due to bilateral hip pain. In Saunders, 886 F.3d at 1364-65, the Federal Circuit held that pain alone can constitute disability under 38 U.S.C. § 1110 if it causes impairment. The Veteran’s lay statements reflect that there is impairment of the hips that causes impairment in earning capacity. Consequently, the first element of service connection has been met with regard to each claim. The evidence of record also indicates that the in-service disease requirement has been met. As a preliminary matter, STRs do not include any hip complaints or treatment. At his November 2019 Board hearing, the Veteran testified that he experienced right and left hip symptoms in service and he has continued to experience bilateral hip symptoms since service. As the Veteran has indicated that he had symptoms during service and these statements are competent and credible, this is sufficient to establish the second element of service connection for each claim. In addition, the Veteran’s testimony indicating hip symptoms in and since service, combined with current diagnoses, is sufficient to establish that the Veteran’s right hip and left hip disabilities had their onset in service. Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ); 38 C.F.R. § 3.303(a) (service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). There is no evidence to the contrary. For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s diagnosed right hip and left hip disabilities had their onset in service. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for right knee and left knee disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Bilateral Flat Foot The Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). The term noted, in 38 U.S.C. § 1111, refers to [o]nly such conditions as are recorded in examination reports. 38 C.F.R. § 3.304 (b). A [h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). With respect to the flat foot issue, the Veteran has now been diagnosed with bilateral flatfoot. Specifically, VA clinical records reflects a current bilateral flat foot disability. The current disability requirement has thus been met. At the Veteran’s August 1959 enlistment examination, a pes planus disability (flat foot) was noted upon entrance to service. Based on this evidence, the presumption of soundness does not apply, because bilateral pes planus was noted at entry into active duty service. Therefore, the primary issue is whether the preexisting bilateral flat foot was aggravated by such service and in this regard the presumption of aggravation must be considered. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (There is a related but distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the presumption of aggravation.). A preexisting injury or disease will be considered to have been aggravated by active duty service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). These provisions apply to only one situation: where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn, 25 Vet. App. at 238 (quoting Wagner, 370 F.3d at 1096) ([I]f a preexisting disorder is noted upon entry into service... the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation). That is the situation in this case. At the Veteran’s July 1962 separation medical examination, his feet were evaluated and noted as normal. At his November 2019 Board hearing, the Veteran testified that he started having problems with his feet during service, and he has continued to experience these symptoms since service. The Board finds the Veteran’s reports of bilateral foot pain he experienced in service competent and credible. Given the Veteran’s competent and credible statements of foot pain in service resulting in worsening of bilateral flat foot in service, the Board finds that his bilateral flat foot worsened during service. Thus, aggravation is presumed. There is no conflicting evidence of record. As noted above, the presumption of aggravation can only be rebutted by clear and unmistakable evidence that the increase was due to the natural progress of the disease. As indicated above, there is no such evidence in this case. The presumption of aggravation has thus not been rebutted and the Board therefore finds that the Veteran’s preexisting pes planus (flat foot) noted at entry into service was aggravated by service. As the above evidence reflects that he has had bilateral flat foot symptoms since that time, reflecting a nexus between the current flat foot and the in-service aggravation, entitlement to service connection for bilateral flat foot on an aggravation basis is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.