Citation Nr: 21015318 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-51 099 DATE: March 17, 2021 ORDER Entitlement to service connection for left knee degenerative arthritis with laceration (left knee disability) is granted. Entitlement to service connection for left middle finger sprain is granted. Entitlement to service connection for low back disability manifested by pain is granted. FINDINGS OF FACT 1. The evidence of record is at least evenly balanced as to whether the Veteran’s left knee disability is related to service. 2. The evidence of record is at least evenly balanced as to whether the Veteran’s left middle finger sprain is related to service. 3. The evidence of record is at least evenly balanced as to whether the Veteran’s low back disability had its onset in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a left middle finger sprain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a low back disability manifested by pain 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 June 1967 to June 1971. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for left middle finger sprain, back disability, and left knee arthritis. In September 2016, the Veteran filed his notice of disagreement, and in October 2016 was issued a statement of the case and perfected his appeal to the Board. In November 2020, the Veteran appeared before the undersigned Veterans Law Judge at a virtual Board hearing. A copy of the transcript is of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Left knee, left middle finger, lower back The Veteran testified that during service he stepped on a deck plate that was not secured, it flipped, and he fell through it landing on a common safe pump on the lower level, hitting his knee on the regulator on top of the pump. He stated that he was treated for the gash in his knee and placed on light duty for several days, and eventually developed an infection in the knee. The Veteran stated that he has continued to have chronic symptoms in his left knee since service, reporting that sometimes “it just wants to go out” from under him, and stating the he experiences pain particularly when walking. The Veteran reported that he has not suffered any other injuries to the knee. He stated that some of his treating physicians have stated that there was a strong possibility that his current left knee disability may be related to his fall in service, but could not definitively make that determination. The Veteran testified that he injured his back in service when he fell through the deck plate, describing it as “kind of a jolt”, and stating that he has had back problems on and off since discharge, reporting having three discs removed from his lower back. He stated that he did not suffer any other trauma to his back during service, or following service. The Veteran reported pain and muscle spasms in his back from time to time for which he takes medication. He also reported pain that radiated down his right leg. The Veteran also testified that he hit his left middle finger with a hammer during service, hurting it considerably, and he stated that he now has “knots” on it, and reported that it goes numb and aches. The Veteran stated he believes the treating corpsman noted the wrong finger as damaged, and that it was actually the middle finger, not the pinky. He reported that he has not sought treatment since service as he learned to “live with” the pain, numbness, and loss of range of motion. The Veteran stated that since his in-service injury, he has continued to have the symptoms of pain and numbness in his middle finger. September 1969 service treatment records reflect that the Veteran was treated for a sore fifth finger on his left hand after hitting it with a 9 lb. hammer. Service treatment records from March, year unknown, reflect that the Veteran was treated for a 3 inch laceration on his left knee after falling through a deck plating. The Veteran’s June 1971 medical examination report upon discharge is normal, with no indication that the Veteran suffered from a left knee, left middle finger, or back disability. June 2016 VA treatment records reflect that the Veteran has undergone 3 lower back surgeries. A July 2016 disability benefits questionnaire (DBQ) reflected that the Veteran had a diagnosis of left knee degenerative arthritis. The Veteran reported injuring his knee when falling through a deck plate which eventually led to his knee becoming infected. He stated that he has had pain on and off since the initial injury and that the condition has progressively worsened. The examining physician’s assistant (PA) opined that the Veteran’s left knee disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that service treatment records show that the Veteran received sutures for a superficial laceration on March 31st, but do not reflect which year. The PA stated that the source of the Veteran’s knee condition is osteoarthritis as evidenced by a July 2016 x-ray, and that it is unlikely that a laceration would cause chronic knee pain approximately 40 years later. The PA noted that a superficial laceration is not the cause of arthritis as arthritis is related to age. A July 2016 DBQ indicated that the Veteran had a diagnosis of left middle finger sprain from 1968. The Veteran reported injuring his finger when he hit a wrench with a sledge- hammer and it slipped and hit his left middle finger. He was given oral medication for the pain, but has not been treated for the injury since. The Veteran reported that the condition has since worsened with aching pain that is intermittent, and decreased range of motion. The examining PA opined that the Veteran’s left middle finger disability was less likely than not (less than a 50 percent probability) incurred in, or caused by an in-service injury, event or illness, stating that there are no medical service records that demonstrate an injury or treatment for the left middle finger. He did note that service records reflected an injury to his left 5th finger, but not the middle finger. December 2016 VA treatment records indicate that the Veteran was treated for left knee pain which he reported hurting in service in 1970. The Veteran stated that he was treated for the injury in service, but has been having ongoing pain since his initial in-service injury. November 2019 VA treatment records reflect that the Veteran has had lumbar spine surgery. June 2020 VA treatment records reflect that the Veteran takes medication for back spasms. October 2020 VA treatment records reflect that the Veteran complained of left knee pain. In an October 2020 note, the Veteran’s private PA stated that the Veteran was found to have moderate to severe degenerative joint disease of the left knee. The PA stated that the Veteran’s left knee injury during service contributed in part to his current left knee disability. The evidence of record is at least evenly balanced as to whether the Veteran’s left knee disability, left middle finger sprain, and lower back disabilities are related to service. The Veteran has competently and credibly described lower back pain and spasms, left knee pain, and left middle finger pain, the July 2016 DBQs noted diagnoses of left middle finger sprain and left knee degenerative arthritis, and his post-service treatment records reflect treatment for low back spasms, and knee pain. His service treatment records reflect in-service events where the Veteran fell through a deck plate, and hit his finger while using a sledge-hammer. Additionally, the Veteran has competently and credibly asserted that he has experienced these symptoms of pain and spasms since the described in-service injuries. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran was competent to report that his treating physicians indicated a relationship between his knee disability and fall in service. Id. As to whether the current disability requirement has been met with regard to the Veteran’s lower back pain, the Federal Circuit held that pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, the evidence shows that the Veteran has low back spasms and pain for which he takes medication, and that the pain makes it difficult for him to perform the physical tasks necessary for employment. Thus, the Veteran’s lower back pain due to his in-service injury has caused impairment such that the symptom would constitute disability, to include impairment of a similar severity, frequency and duration contemplated by the rating schedule. See also Wait v. Wilkie, 33 Vet. App. 8 (2020) (the Board must make the factual determination as to whether manifestations rise to a level of functional impairment in earning capacity with consideration of the Rating Schedule, but the presence of a symptoms or manifestation in the Rating Schedule is not dispositive). Therefore, the first two requirements for service connection have been satisfied for each disability. As for the nexus requirement, while the July 2016 PA opined that the Veteran’s left knee disability and left middle finger sprain are not more likely than not related to the Veteran’s in-service injuries, the PA did not consider the Veteran’s statements regarding left knee and left middle finger pain since service, and based his opinion regarding left middle finger sprain on a lack of treatment during service, noting that a different finger was referenced in the records. However, the Veteran has consistently indicated that his left middle finger was injured during service and it is reasonable to conclude the during treatment, the incorrect finger was noted as injured. As the PA failed to consider the Veteran’s lay statements regarding the onset of his injuries, his opinions are inadequate and afforded no probative value. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran’s private PA alternatively indicated that the Veteran’s in-service injury contributed to his current left knee disability. While the private PA’s rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran’s in-service injury and subsequent symptoms, made it likely that they had resulted in his current disability. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board notes that there are inadequate nexus opinions regarding the Veteran’s left knee and left middle finger disability, one positive opinion regarding the left knee disability, and no nexus opinions of record regarding the Veteran’s lower back disability. However, the evidence of record is sufficient for adjudication and a request for additional opinions could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). To the extent that the grants of service connection for lower back disability and left middle finger sprain are based primarily on lay evidence, “nothing 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.” Buchanan, 451 F.3d at 1335. The Veteran has provided competent and credible evidence of left knee, left middle finger and low back pain since his in-service injuries, and medical evidence that his left knee disability is related to service. The evidence is thus at least evenly balanced as to whether the Veteran’s left knee disability is related to his in-service injury, and whether the Veteran’s left middle finger spring and lower back disability had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a left knee disability, left middle finger sprain, and lower back disability manifested by pain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.