Citation Nr: 21016120 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-18 130 DATE: March 19, 2021 ORDER Service connection for a right knee disability is granted. Service connection for a lumbar disability, to include as secondary to service-connected disabilities, is granted. Service connection for an acquired psychiatric disorder (unspecified depressive disorder), to include as secondary to service-connected disabilities, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for residuals of a head injury, to include a traumatic brain injury (TBI) and accompanying residuals (migraine headaches), is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise that the Veteran’s current right knee arthritis is related to his active duty. 2. The competent and probative evidence tends to show the Veteran’s current lumbar disability is proximately due to his now service-connected right knee disability. 3. The competent and probative evidence tends to show that the Veteran’s current unspecified depressive disorder is proximately due to his now service-connected orthopedic disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection a lumbar disability, to include as secondary to service-connected disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for unspecified depressive disorder, to include as secondary to service-connected disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from August 1960 to August 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2010 (knee and back) and January 2015 (acquired psychiatric disorder, OSA, and TBI) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in August 2019; a transcript is of record. Subsequently, the Board remanded these matters most recently in October 2020 for additional development to obtain examinations. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Medical examinations and opinions were obtained. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a 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). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a lumbar disability. The Veteran asserts service connection for right knee and lumbar disabilities. The Board concludes the Veteran has diagnoses of right knee osteoarthritis and lumbar degenerative arthritis during the period on appeal, and they are related to service and/or secondary to his service-connected disabilities. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.309(a), 3.310(a). The Veteran has diagnoses of right knee joint osteoarthrosis and degenerative arthritis of the spine, to include as reported in the 2021 examinations. As such, the first element of service connection is met. The Veteran testified at the August 2019 Board hearing that he injured his knee and back in physical training during active duty. He endured the pain throughout service, and eventually sought treatment a few years after service. He also believes that his knee injury altered his gait to cause his lumbar disability. He has submitted buddy statements explaining that he injured his knee and back during service while completing an obstacle course. The Veteran also submitted a written statement describing his obstacle course injury in service. The Board finds that the lay statements are credible and competent and are entitled to probative weight. However, while the statements are competent to describe in-service injuries, they are not competent to determine that his disabilities are manifestations of his in-service injuries or are otherwise related to his service. The issues are medically complex as they involve the orthopedic system and require expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board previously found January 2020 opinions insufficiently addressed the Veteran’s credible lay statements. In December 2020, examinations and nexus opinions were obtained. The examiner provided negative nexus opinions for the Veteran’s right knee and lumbar disabilities. However, the examiner relied on the absence of in-service documentations of an injury. As such, the Board finds these negative nexus opinions to have no probative weight. A different examiner provided a negative nexus opinion for the Veteran’s right knee in January 2021. She explained that the Veteran’s in-service knee injury was acute as there was no chronicity of care. Rather, he had a meniscus repair in 1985, which was 21 years after service. He later developed arthritis, which according to the Journal of Knee Surgery, occurs in 63 percent of meniscal surgery patients. His arthritis was initially diagnosed in 1997, when he was 55 years old. The examiner explained that the American Academy of Orthopedic Surgeons reports that knee arthritis most often occurs in individuals who are 50 years or older due to degenerative wear and tear. The Board finds this opinion to have probative value. The examiner accounted for the Veteran’s credible lay statements describing his in-service injury. She explained that he did not develop arthritis until after his meniscus repair. She cited relevant medical literature in support of her opinion, and provided alternative causes of his knee disability (aging and wear and tear). However, she also relied on the absence of chronicity of care, but the Veteran has credibly described consistent right knee pain. The January 2021 examiner also provided a negative nexus opinion for the Veteran’s lumbar disability. She explained that it was not due to service because of peer reviewed literature, as well as a lack of evidence of chronicity. However, she found that it was plausible that his disability was due to his right knee disability as the Veteran had a documented leg length discrepancy with an altered gait and that can cause lumbar aggravation. The Board finds this opinion to have probative value. The examiner explained that it was possible that the Veteran’s lumbar disability was due to his right knee disability. However, he was not service-connected for his knee disability at the time of the examination. She also explained that his lumbar disability was not due to service as there was a lack of chronicity. His private treatment records document that the Veteran reported injuring his knee during service. Other records again document that he injured his knee and back during service. Additionally, the orthopedic surgeon found that the Veteran’s right knee disability could require surgery due to years of stress from his military-related injury in service and that he has had right knee pain for years. The Board these private medical records regarding the Veteran’s right knee to have probative value. The Board acknowledges that the statement is somewhat conclusory, but the physician, a specialist in his field, reported that the Veteran had increased stress in his right knee that was due to his in-service injury. As such, the Board finds this medical record to have probative value. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his right knee arthritis is due to in-service injuries. The Board acknowledges the negative 2021 opinion. However, there is also a positive medical record that states his right knee disability is due to increased stress from his in-service injury. The Board has found the Veteran’s and other individual lay statements credible to report the Veteran’s limping after service. As the opinions and medical records have strengths and weakness, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). As such, the Board finds that the evidence is at least in equipoise that the Veteran’s current right knee arthritis is related to his active duty. Therefore, service connection for right knee arthritis is warranted. 38 C.F.R. § 3.102, 3.303. Additionally, as the Veteran’s right knee disability is now service connected, the Board also finds service connection for the Veteran’s lumbar disability is warranted. The 2021 examiner found that the Veteran had an altered gait which likely aggravated his lumbar disability. Although she did not opine in “at least as likely as not” terms that his lumbar disability was secondary to his right knee disability, she stated that it was plausible, and she provided a negative nexus opinion for his lumbar disability based on his right knee disability not currently being service connected. Therefore, the Board finds service connection for a lumbar disability is warranted. 38 C.F.R. § 3.310(a). 3. Entitlement to an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). The Veteran asserts service connection for an acquired psychiatric disorder. The Veteran has current diagnoses of PTSD and unspecified depressive disorder, to include as reported in the January 2020 examination, as diagnosed by a psychologist. As such, the first element of service connection has been met. The January 2020 examiner provided a negative nexus opinion for his PTSD and a positive nexus opinion for his unspecified depressive disorder. For his PTSD, she explained that his disorder was not related to his in-service stressors of a pugil stick injury or injuring his knee during basic training. Additionally, he did not endorse PTSD symptoms until 2016 after the initial denial of service connection for PTSD. The initial symptoms of PTSD were more likely due to his depressive disorder. Additionally, she explained that his PTSD was more likely related to recent traumatic events including his granddaughter’s motor vehicle accident, his daughter’s breast cancer, and his lung cancer, rather than any traumatic event during service. For his depressive disorder, the examiner explained that his knee and back disorders and subsequent surgeries caused a significant reduction in his daily activity. He could no longer walk three to four miles per day, and was limited to walking down the block. She explained that his depressive symptoms are likely related to his increased limitation in physical activities which often contributes to low mood, irritability, and sleep interference. The Board finds this opinion to have much probative value. The examiner thoroughly reviewed the Veteran’s medical records and history, explained why his PTSD was not related to service, and thoroughly reasoned why his depressive disorder was due to his orthopedic disabilities and accompanying limitations. The January 2021 examiner provided a negative nexus opinion for the Veteran’s acquired psychiatric disorders. The psychologist explained that the Veteran’s disorder was far less likely due to service, but was rather due to his lung cancer and family issues. The Board finds this opinion to have some probative value. The examiner diagnosed the Veteran with unspecified trauma and stress related disorder, which was likely due to life events and circumstances in 2016. However, the examiner does not address prior acquired psychiatric disorders diagnosed during the period on appeal. As such, the Board finds the opinion to have some probative value, but less probative value than the 2020 opinion. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that his unspecified depressive disorder is proximately due to his now service-connected knee and lumbar disabilities. 38 U.S.C. § 5107(b). The Board acknowledges the negative 2021 opinion, but finds the January 2020 opinion to have the most probative value as shown above. Therefore, the Board finds that service connection for unspecified depressive disorder is warranted. 38 C.F.R. § 3.310(a).   REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The December 2020 examiner provided a negative nexus opinion for the Veteran’s OSA. He explained that it was not due to service and was not secondary to his service-connected disabilities. However, the examiner did not address the Veteran’s pugil stick injury in service or the Veteran’s belief that his OSA is due to his deviated septum/broken nose. The examiner also relied on the absence of the Veteran having OSA symptoms during service. He explained that the Veteran was not diagnosed with OSA until 2011. However, the Veteran has credibly testified that his wife told him that he would stop breathing in his sleep in the 1980s. As such, the Board finds that an addendum opinion or examination that adequately addresses the in-service pugil stick injury and the Veteran’s competent and credible lay statements describing his OSA symptoms beginning earlier than his 2011 diagnosis is required. 2. Entitlement to service connection for residuals of a head injury, to include a TBI and accompanying residuals including migraine headaches, is remanded. The Veteran underwent an examination in December 2020. The examiner stated that the Veteran did not have a TBI diagnosis. However, the examiner also completed a migraine-headaches examination as part of his examination of the Veteran. No nexus opinion was provided for the migraine headaches. Additionally, the Board again acknowledges the January 2020 examination report suggesting that his headaches could be due to an alternative etiology of OSA, acquired psychiatric disorder, or tinnitus. As such, the Board finds that an addendum opinion or examination is required to determine whether the Veteran’s migraine headaches are due to his in-service injury, or alternatively, secondary to any service-connected disability such as the now service-connected psychiatric disorder. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After associating any treatment records with the claims file, obtain an addendum opinion or examination if necessary, to determine the etiology of the Veteran’s OSA. The claims file is to be made available to the examiner and reviewed in conjunction with the examination. --Then, address whether: (a.) It is at least as likely as not (50 percent or greater probability) that his OSA was caused by a disease or injury in service, to include a pugil stick injury? (b.) If no, is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The Board finds the Veteran competent to testify that he was struck in the face by a pugil stick during service. The Veteran’s competent statements are to be considered in rendering an opinion. The examiner may not rely on the absence of documentation of the in-service injury to the Veteran’s nose to provide a negative nexus opinion as the Board has found him to be competent and credible to describe such an in-service injury. Additionally, the Veteran is credible to report that his wife described his breathing problems while sleeping years prior to his formal OSA diagnosis. The examiner MUST specifically address both the Veteran’s injury in service (pugil stick) and his credible lay testimony describing sleep and breathing difficulties in the 1980s.** See 8/27/2019, Hearing Transcript. 3. After associating any treatment records with the claims file, obtain an addendum opinion or schedule the Veteran for an examination to address the residuals of his pugil stick injury in service, to include his migraine headaches as reported as the December 2020 examination. -- Identify any residuals from his pugil stick injury in service, to include migraine headaches. Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) any residual disability is related to an in-service injury, event, or disease, including a head injury. (b.) If no, is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The Board finds the Veteran credible to testify that he was struck in the face by a pugil stick during service. The Veteran’s competent statements are to be considered in rendering an opinion. The examiner may not rely on the absence of documentation of the in-service injury to the Veteran’s nose to provide a negative nexus opinion as the Board has found him to be competent and credible to describe such an in-service injury.** See 8/27/2019, Hearing Transcript. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 4. Inform EACH of the above examiners that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page)   If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.