Citation Nr: 21015193 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-05 874A DATE: March 16, 2021 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. Entitlement to service connection for degenerative arthritis of the left and right knees is granted. Entitlement to service connection for an acquired psychiatric disability is denied. REMANDED Entitlement to service connection for an eye disability is remanded. FINDINGS OF FACT 1. A November 2012 VA examination reflects a diagnosis of arthritis of the thoracolumbar spine. 2. The evidence is at least in equipoise as to whether there was continuity of symptomatology of arthritis of the thoracolumbar spine from the time of the Veteran’s active service to the time of the period on appeal. 3. The evidence is at least in equipoise as to whether the Veteran had arthritis of the left and right knees during the period on appeal. 4. The evidence is at least in equipoise as to whether there was continuity of symptomatology of arthritis of the left and right knees from the time of the Veteran’s active service to the time of the period on appeal. 5. The weight of the evidence is against a finding that the Veteran had a present acquired psychiatric disability at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for degenerative arthritis of the left and right knees have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1974 to February 1975, and from July 1986 to March 1993, with additional periods of reserve service. In April 2012 the Veteran filed a claim for service connection for a back disability (claimed as low back pain); a leg disability (claimed as shin splints); an eye disability; and an acquired psychiatric disability (claimed as depression). The Veteran’s claims were denied in a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely initiated and perfected an appeal in December 2013 and February 2017, respectively. A death certificate received by VA in September 2019 reflects that the Veteran died during the pendency of his appeal, in August 2019. August 2020 correspondence from VA to the appellant reflects that the appellant, the Veteran’s on, was found to be eligible for substitution as the dependent of the Veteran, and was so substituted. Therefore, the appeal continues, and the Board has jurisdiction to decide the instant claims. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. 1. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. A November 2009 VA treatment note documents a medical imaging study showing degenerative changes of the spine. A November 2012 VA examiner documented that the Veteran had been diagnosed, via imaging, with arthritis of the thoracolumbar spine. A May 2014 VA treatment note documents a medical imaging study of the Veteran’s chest showing degenerative changes of the spine. The Board finds that the Veteran had a diagnosis of degenerative arthritis of the lumbar spine throughout the period on appeal. The November 2012 VA examiner did not offer an opinion as to whether the Veteran’s degenerative arthritis of the thoracolumbar spine had its onset during active service or was otherwise related to his active service; rather, the examiner’s opinion was limited to whether the Veteran’s lumbar spondylosis was the result of a 1990 in-service surgery to remove a lipoma. The Board finds that the instant claim may be adjudicated without recourse to a remand for an addendum medical opinion. Where there is evidence of a chronic disability in service, but insufficient evidence of chronicity, the nexus element may be satisfied by a showing of a continuity of symptomatology after service. 38 C.F.R. §§ 3.303(b), 3.309(a). Arthritis is among those disabilities for which VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). Laypeople are competent to report phenomena observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). At the November 2012 VA examination, the Veteran reported that his back pain had its onset in the 1970s and had been constant since. At a November 2020 Board hearing the appellant testified that he remembered the Veteran wearing a back brace while living in Ft. Meade, Maryland. The Board finds that the Veteran was competent to report his experience of back pain, and the appellant is competent to report his memory of the Veteran wearing a back brace. Notes in the STRs dated November 1992 and February 1993 reflect that the Veteran was stationed at Ft. George Meade, in Maryland during his final period of active service. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the symptoms of the Veteran’s degenerative arthritis of the thoracolumbar spine manifested continuously from the time of his active service to the time of the period on appeal. Accordingly, the criteria for entitlement to service connection for degenerative arthritis of the thoracolumbar spine have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. Entitlement to service connection for degenerative arthritis of the left and right knees As noted above, in April 2012 the Veteran filed a claim for a lower extremity disability he characterized as “shin splints.” In direct appeals, all filings must be read in a liberal manner; where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim and the VA is obligated to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). A November 2012 medical imaging study of the Veteran’s right knee showed “mild joint space narrowing within the medial compartment, likely reflecting osteoarthritic change.” In January 2013 a VA examiner documented a 2012 tear of the Veteran’s left meniscus, but otherwise documented no current diagnoses concerning the lower extremities. The examiner specifically indicated that diagnostic testing showed no degenerative arthritis. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The Board finds the January 2013 VA examination of the Veteran’s lower extremities to be inadequate in that it did not reflect consideration of the November 2012 medical imaging findings characterized by treating providers as “likely osteoarthritic change.” In February 2014 a consulting VA orthopedic surgeon assessed the Veteran as having “probable osteoarthritis of both knees.” The Board finds the evidence to be at least in equipoise as to whether the Veteran had a diagnosis of arthritis of the left and right knees during the period on appeal. As discussed above, arthritis is among those disabilities for which VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). Laypeople are competent to report phenomena observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). At the November 2020 Board hearing, the appellant testified that, as a child, he remembered the Veteran complaining of knee pain and taking breaks during family trips to amusement parks due to knee pain. The November 2012 medical imaging study and February 2014 VA orthopedic consult reflect complaints of pain in both knees. The Board finds that the evidence is at least in equipoise as to whether the symptoms of the Veteran’s degenerative arthritis of the left and right knees manifested continuously from the time of his active service to the time of the period on appeal. Accordingly, the criteria for entitlement to service connection for degenerative arthritis of the left and right knees have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. Entitlement to service connection for an acquired psychiatric disability In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In his April 2012 claim the Veteran described feeling depressed as a result of his other claimed disabilities. However, at his January 2013 VA examination he reported “[n]o ruminations or negative thoughts [and] no irritability.” The Veteran described his mood as “good most of the time.” The Veteran denied situations, circumstances, or places that contribute to anxiety or depressed mood. The Veteran was described as alert and fully oriented; with speech and thought content within normal limits, logical and goal directed thought processes, and grossly intact memory and attention. The January 2013 VA examiner documented no existing diagnoses of any acquired psychiatric disabilities, and stated that the Veteran did not meet any criteria for a mental health diagnosis. At the November 2020 Board hearing the appellant described the Veteran as irritable and getting upset “over . . . the smallest things really quick(ly).” The appellant also reported that the Veteran described dealing with depression for “some years.” The Board acknowledges that the appellant and the Veteran are competent to describe phenomena observable to their senses, such as mood and behavior. However, they are not competent to render mental health diagnoses. Cf. Jandreau, 492 F.3d at 1377 n.4. Given the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran had an acquired psychiatric disability at any point during the period on appeal. Accordingly, service connection for an acquired psychiatric disability is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See e.g. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for an acquired psychiatric disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for a disability of the eyes is remanded. A December 2012 VA examiner stated that the Veteran had no treated eye condition. However, a September 2017 VA optometric treatment note reflects the following diagnosed eye disabilities: mild stage open angle glaucoma, right eye; bilateral combined form cataracts; bilateral epithelial basement membrane dystrophy; bilateral meibomian gland dysfunction; and diabetic retinopathy. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. There is currently no VA examination and medical opinion of record which is based on the more recent VA treatment records reflecting several diagnoses related to the Veteran’s eyes. In light of the foregoing, the Board concludes that the Veteran’s eye claim should be remanded to obtain a VA medical opinion based on updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of any eye disabilities. The claims folder, including a copy of this remand, must be made available to the clinician and such review should be noted in the opinion. The clinician should identify and discuss any eye disabilities identified during review of the file and the pendency of this claim. For each identified disability, please respond to the following: (Continued on the next page)   (a.) Whether any identified eye disability is at least as likely as not related to an in-service injury, event, or disease, or whether it first had its onset during a period of active service. (b.) Whether any identified eye disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.