Citation Nr: 21014150 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 07-27 599 DATE: March 11, 2021 ORDER Entitlement to service connection for a bilateral knee disability is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s back, right and left knee disabilities are the result of repeated impact to the knees and spine from multiple parachute jumps. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to July 1967. The Veteran testified at a hearing before the Board in January 2009. A transcript of the hearing is of record. In June 2017, the Board denied the claims of entitlement to service connection for bilateral knee and back disabilities. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a joint motion for remand (JMR), vacating the Board’s June 2017 decision. In December 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain new VA examinations and opinions concerning the Veteran’s bilateral knee and back disabilities. In April 2020, after the AOJ obtained addendum opinions, the Board again remanded the claim to the AOJ due to a failure to comply with the December 2018 remand directives. The appeal was again remanded in December 2020 for additional development, which has been completed. The Board apologies for the delays in the adjudication of this case. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38C.F.R. §3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38C.F.R. §3.310 (b). 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 bilateral knee disability 2. Entitlement to service connection for a back disability The Veteran seeks service connection for a bilateral knee disability, diagnosed as chondromalacia patella, and a low back disability, diagnosed as degenerative arthritis of the spine. He contends that those disabilities are the result of his completing multiple parachute jumps during active service. He also contends that his low back disability is secondary to his bilateral knee disability. During his April 2009 hearing before the Board, the Veteran testified that he was a paratrooper and completed approximately 39 jumps. He asserted that after his sixth jump he felt something was not right with his knees. Reportedly, he was given over the counter medication and a light duty profile for several weeks. The Veteran testified that he developed back pain a few months thereafter. He continued to experience pain in both knees and back since service and sought treatment approximately three years after service and was told that the knee problems were likely due to parachute jumps. He was treated with cortisone injections. A review of the Veteran’s service treatment records do not show any treatment for a knee or low back injury or disability during active service, and his separation examination is silent as to any such issues. Thus, on the basis of the Veteran’s service treatment records alone, degenerative changes of either knee or the back were not affirmatively shown to have been present in service. However, the Veteran’s service personnel records reflect that he earned his parachutist badge while on active duty. Thus, in light of the evidence of record, and the Veteran’s assertions of repeated traumas to the legs and back during parachute jumps with hard landings are credible and consistent with the circumstances and conditions of his service. As such, the Board concedes that the Veteran was exposed to cumulative physical impact to the knees and back in service. In November 2006, the Veteran was afforded a VA examination of his bilateral knee disability. The examiner opined that the Veteran’s complaints of knee pain, his chondromalacia patella was not related to active duty military service because the condition was not noted in service or for many years thereafter. The examiner also noted that there was no credible scientific medical literature that supported the Veteran’s contention that knee pain was caused by jumping from planes. In August 2007, the Veteran submitted a medical statement from a private osteopath. In that letter, the physician stated that the Veteran complained of bilateral knee and low back pain that he reportedly incurred in service as the result of his various parachute jumps in therein. The Veteran also stated that he twisted the right knee while serving in Korea. In July 2016, the Veteran was afforded a VA examination in connection with his low back pain. Degenerative arthritis of the thoracolumbar spine was diagnosed. The examiner stated that arthritis of the lumbosacral spine was part of the normal aging process and there was no objective medical evidence that the condition originated during service or was otherwise etiologically related to service or events on active duty. Therefore, because his arthritis of the spine was part of the normal aging process, it was not related to the Veteran’s parachute jumps in service in the 1960’s. In January 2017, an addendum opinion was obtained regarding the Veteran’s claimed knee disability. The examiner opined that the Veteran’s claimed knee condition was less likely than not to have originated during service or and was otherwise not etiologically related to service, to include his parachute jumps. The examiner based the opinion on the lack of evidence of a knee disability or treatment during service or for many years thereafter. The examiner noted that the Veteran’s body-mass index (BMI) placed him in the overweight by mainly obese category, which could put stress on the knees and lead to subjective complaints of pain. As such, his claimed knee condition was less likely than not to have originated during service or and was otherwise not etiologically related to service, to include his parachute jumps. On VA examination in January 2019, the examiner opined that the Veteran’s back and knee disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based the opinion on the lack of findings of chronicity of care in service or for many years thereafter. The examiner noted that knee problems in service were only acute in nature, and imaging studies of the lumbar spine in 1993 were normal. Degenerative arthritis of the lumbosacral spine was part of the natural aging process. The examiner further opined that degenerative arthritis was not related to or permanently worsened by the Veteran’s bilateral knee condition. The Board found that the VA examination opinion reports were inadequate because the examiners did not address the Veteran’s reports of in-service and chronic back and knee pain since service, nor whether the Veteran’s bilateral knee disability was etiologically related to his in-service parachute jumps. Instead, the examiners mainly focused on the absence of treatment without any explanation as to why that would be medically significant. Accordingly, a new VA medical opinion addressing the Veteran’s contentions was obtained in June 2020. Following a review of the claims file, the examiner opined that the claimed condition back and knee disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based the opinion on the lack of a chronic knee or back disorder, or parachute injuries, noted in service or for many years thereafter. Despite claimed injury due to jumps, no knee arthritis was diagnosed as of 2006, and 1993 x-rays of the spine were normal. Traumatic arthritis typically developed within 20 years of injury, which was not shown by the evidence of record. Therefore, the examiner concluded that the Veteran’s lay statements regarding chronicity of symptomatology were not supported by evidence. Additionally, the back disability was less likely than not due to the knee disorders because there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity was not supported based on record review, history or examination. Therefore, the low back condition was less likely than not related to the bilateral knee disability. A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but that such absence of documented treatment, cannot by itself support a negative opinion with respect to a potential relationship between the Veteran’s current back and bilateral knee disorders and his numerous in-service parachute jumps. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise and satisfactorily establishes that the back and bilateral knee disabilities originated during his active service. In reaching this decision, the Board notes that his lay statements consistently and credibly indicated that he sustained repeated traumas to the knees and back during parachute jumps with hard landings during active duty service. The Veteran’s military personnel records, which note that he is the recipient of a parachutist badge, further corroborate his lay testimony. Thus, he has credibly stated that the onset of his back, right knee and left knee disabilities occurred during service. Although the VA examiner in 2020 opined that the Veteran’s back and bilateral knee disabilities were not caused or aggravated by his military service, and the examiner acknowledged the Veteran’s contentions of chronicity since service, the opinion nonetheless appears to rely on the lack of documentation of a chronic disorder or injuries in service, which the JMR rejected. While the Board now has multiple medical opinions against this case, the Board believes it cannot remand this case once again considering the mandates of the JMR. The JMR has requested something that Board is finding challenging to obtain and, it appears at some points, places the examiner in the abnormal position of fact finder. The Board is the finder of fact, not the doctor. However, we cannot ignore the order of the JMR, which places the Board is a difficult situation. Further, we must avoid further delay of this case. Significantly, the Board herein conceded that the Veteran was exposed to cumulative physical impact to the knees and back in during his numerous parachute jumps in service. Although the VA examiners pointed to aging and BMI as factors contributing to his back and knee disabilities, because he had over 30 jumps during service it is safe to assume that parachute jumping played a role in the development of his degenerative arthritis of the spine and knees. Therefore, the Board finds the reports given by him regarding in-service occurrence, as well as the military personnel records, to be the most probative evidence in this instance. As such, reasonable doubt is resolved in the Veteran’s favor and the claims are granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.