Citation Nr: 21022993 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-19 856 DATE: April 19, 2021 ORDER Service connection for a bilateral knee disability is granted. Service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the Veteran’s current bilateral knee disability, to include bilateral knee osteoarthritis, was incurred in service. 2. Affording the Veteran the benefit of the doubt, the Veteran’s current lumbar spine disability, to include lumbar degenerative disc disease, was incurred in service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral knee disability have been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria to establish service connection for a lumbar spine disability have been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to October 1967. Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in January 2020 the Court of Appeals for Veterans Claims (CAVC) vacated a portion of the Board’s February 2019 decision and remanded it to the Board for compliance with its instructions. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Under 38 U.S.C. § 1154 (b), there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, providing the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d) (general combat presumption); 3.304 (f) (PTSD combat presumption). Participation in combat is a determination that is to be made on a case-by-case basis, and it requires that a Veteran have “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” See Sizemore v. Principi, 18 Vet. App. 264 (2004); VAOPGCPREC 12-99 (October 18, 1999). Certain decorations are evidence of combat participation. However, receipt of a decoration is not the only acceptable evidence of engagement. Service in a combat zone or a particular military occupational specialty, alone, is not sufficient to establish that a Veteran “engaged in combat with the enemy” as to qualify for the presumption based on combat service. However, 38 U.S.C. § 1154 (b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, (i.e., that a relevant in-service event occurred) not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154 (b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet. App. 563 (1996). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral knee disabilities Treatment records indicate the Veteran had several surgeries on both knees and that both knees demonstrate degenerative arthritis. The Veteran contends he incurred the onset of his current bilateral knee injuries during service when he played football for the Army prior to serving in Vietnam. Alternatively, the Veteran contends his bilateral knee disabilities are secondary to his back disability that he contends he incurred during combat service in Vietnam when he was blown backwards from an explosion, hit a tree, and fell into a pit. The Veteran’s November 1965 report of medical history at preinduction indicates the Veteran denied arthritis and “trick” or locked knee. His clinical lower extremities evaluation was normal. There are no complaints, diagnoses, or treatments for bilateral knee pain in service. The Veteran’s October 1967 report of medical history at separation indicates the Veteran denied arthritis and “trick” or locked knee. Clinical examination of the lower extremities found no abnormalities, and the Veteran was assigned a “1” rating assessing the lower extremities under the PULHES profile system, indicating that the Veteran’s lower extremities were then in a high level of fitness sat discharge. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H “); eyes (“E”) and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Veteran contends he was treated for back and bilateral knee pain while playing service football before arriving in Vietnam for a tour of duty as a combat radio/telephone operator. The Veteran stated he was treated for his bilateral knee pain after every game with Novocain injections and whirlpool treatments. The Veteran has submitted evidence that he played football for a divisional team. The Veteran is credible in his report of excessive trauma to his knees while playing football and the evidence is consistent with the places, types, and circumstances of his service. Therefore, his complaints of back and bilateral knee pain while playing football is recognized. See 38 U.S.C. § 1154 (a). Private March 2007 treatment records indicate the Veteran reported bilateral knee pain since 1967, with left knee pain worse than right. At the evaluation, he reported “a few” arthroscopy surgeries on both knees and that both knees were always painful. Subsequent imaging revealed bilateral knee pathology including medial narrowing; spurring; osteophyte formation; and patellofemoral narrowing. At an October 2014 VA medical examination, the Veteran reported a left knee anterior cruciate ligament (ACL) tear in 1966, a left knee ACL repair surgery in 1969, a right knee medial meniscus tear with meniscectomy and scar in 1997, and left knee replacement surgery in 2007. The Veteran reported he injured his knees while playing football in Germany and then developed “recurrence” of bilateral knee symptoms while serving in Vietnam. The examiner opined the Veteran’s bilateral knee disability began in service and was worsened by the Veteran’s service in Vietnam. The examiner also stated that since the Veteran’s bilateral knee condition predated his Vietnam service, it was less likely than not that the Veteran’s bilateral knee disabilities were secondary to his back injury incurred during combat service in Vietnam. At the March 2018 VA medical examination, the examiner noted the large volume of medical records in the Veteran’s claims file and that it would have been “impossible” to review these materials in detail within the time allotted for the examination. Nonetheless, the examiner indicated he reviewed the Veteran’s claims file, and noted diagnoses of degenerative arthritis of both knees. The examiner also noted the Veteran’s several knee surgeries on both knees, with the earliest left knee surgery in the 1980s. He opined there was no objective evidence of continuity of care for the Veteran’s claimed bilateral knee disabilities since service and that degenerative arthritis of the knees was a “normal” age progression condition that was not related to the claimed in-service events of playing football and/or serving in combat. The Court has ruled this opinion of low probative value because it was conclusory and did not take the Veteran’s statements regarding treatment he received after in-service football games nor his combat experiences into account. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”). At the June 2018 Board hearing, the Veteran reiterated that he played service football before Vietnam. He described one incident of being blown backwards, hitting a tree, and then falling into a punji pit. He also reported undergoing his first knee surgery in approximately 1968. In a February 2021 private evaluation and opinion, the examiner noted that the Veteran’s reports of whirlpool treatments and numbing injections were consistent with the training and therapy techniques used at that time. The examiner noted that although the records for the Veteran’s surgeries secondary to diagnoses of ACL and medial meniscus tears soon after discharge were unavailable, these surgeries were common and were consistent with records that show the degenerative nature of the Veteran’s bilateral knee disabilities. The examiner also commented on the March 2018 VA examiner’s statements and opinions. The private examiner disagreed with the conclusion that degenerative arthritis was due to age progression. The private examiner noted that knee injuries as described by the Veteran “almost always” led to residual disabilities such as post-traumatic osteoarthritis. The private examiner also noted that medical research indicated that only approximately 11 percent of males age 70 or over demonstrate radiographic evidence of knee osteoarthritis and that only less than three percent demonstrated symptoms of knee osteoarthritis. The private examiner opined that after a review of the Veteran’s medical records, lay statements, and pertinent medical literature, the Veteran’s in-service knee injuries were the proximate cause of his current bilateral posttraumatic osteoarthritis knee disability. In a statement received in March 2021, the Veteran’s daughter noted that she recalled the Veteran demonstrated knee and back problems “as far back as [she could] remember,” and provided examples of these continuing symptoms. In a March 2021 statement, the Veteran’s spouse recalled the Veteran underwent Novocain shots in both knees and whirlpool treatments after “every” game. She also reported the Veteran informing her of his injury after an explosion blew him into a tree and he landed in a pit. She recalled five knee operations since service, and that he demonstrated chronic pain. These lay statements are competent regarding their observations of the Veteran’s pain, their recollection of the Veteran’s statements regarding in-service injuries and treatment, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to link the Veteran’s current bilateral knee diagnoses to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Extensive medical and factual development has been considered and the Board presently finds that the evidence is in approximate balance. Further medical inquiry would not substantially assist the Board in its determination and the claim for service connection for the Veteran’s bilateral knee disability will be granted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress). Entitlement to service connection for a back condition At the March 2018 VA medical examination, x-rays indicated the Veteran’s lumbar spine demonstrated degenerative disc narrowing, severe spondylosis and mild scoliosis. The Veteran contends he initially incurred a back injury while playing service football and later when an explosion sent him backwards into a tree and he fell into a pit. STRs indicate the Veteran denied arthritis at the November 1965 preinduction report of medical history. His clinical musculoskeletal evaluation was normal. There are no complaints, diagnoses, or treatments for low back pain in service. He denied recurrent back pain on his October 1967 report of medical history at discharge. His clinical musculoskeletal evaluation at discharge was normal. The Veteran’s PUHLES ranking at discharge was “1” for capacity and stamina, and for upper extremities. In a January 2015 statement the Veteran reported frequent exposure to explosions while carrying heavy radio equipment during service and that he often had to walk “bent over” to avoid being seen by enemy forces. Although the Veteran’s STRs do not substantiate the occurrence of any medical treatment for a back injury, the Veteran’s personnel records indicate he participated in combat in Vietnam. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, if the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d). Given the evidence of the Veteran’s participation in hostile action, the Veteran’s in-service back injury is recognized. 38 U.S.C. § 1154 (b). Private treatment records indicate the Veteran complained of low back pain in February 2005, over 50 years after service. At the time he indicated no prior trauma to the pain. He was assessed with low back pain. At the October 2014 VA medical examination, the Veteran reiterated his service account. He also reported a diagnosis of lumbar strain in 1967 and that he received chiropractic treatment immediately after discharge. The examiner noted the Veteran reported no back injuries since service. The examiner opined the Veteran’s current low back disability was incurred in service. At the March 2018 VA medical examination, the examiner stated he did not review the Veteran’s complete file because it would have been “impossible” to review all the material in the time allotted for the examination. X-rays indicated the Veteran’s lumbar spine demonstrated intervertebral disc syndrome (IVDS), spondylosis and mild scoliosis. The Veteran reported his chronic low back pain began approximately five years previously. The examiner opined that the Veteran’s degenerative arthritis was a normal age progression condition that was not related to the Veteran’s in-service injuries. The examiner also noted the Veteran’s scoliosis was congenital. The Court has ruled this opinion of low probative value because it was conclusory and did not take the Veteran’s statements regarding treatment he received after in-service football games nor his combat experiences into account. See Nieves-Rodriguez v. Peake, supra. In a February 2021 private evaluation, the examiner noted that the Veteran’s reports of whirlpool treatments for the Veteran’s back pain after playing football were consistent with the training and therapy techniques used at that time. The examiner also commented on the March 2018 VA examiner’s statements and opinions. The private examiner disagreed with the VA examiner’s conclusion that degenerative arthritis of the lumbosacral spine was normal age progression. The private examiner noted that were the VA examiner’s statement true, then all 70- year old men would complain of back pain, limp, and have radiographic evidence of lumber degenerative disease. The private examiner noted that although disc degeneration, which he noted was often asymptomatic, was a consequence of aging, degenerative disc disease (DDD) with IVDS, characterized by pain, abnormal range of motion and abnormal motor symptoms, was not. The private examiner disagreed with the VA examiner’s rationale that the Veteran did not demonstrate continuity of care since service. The private examiner explained that the biological process of post-traumatic lumbar DDD took decades to manifest symptoms, and found the Veteran’s in-service knee and back injuries were the proximate events that led to his post-traumatic lumbar DDD diagnosis. As noted above, in March 2021 the Veteran’s daughter and spouse submitted statements about their recollections and observations of the Veteran’s chronic knee and back pain since service. Although these statements are competent regarding their observations, they are not competent to link the Veteran’s current lumbar spine disability to service. Extensive medical and factual development has been considered and the Board presently finds that the evidence is in approximate balance. Further medical inquiry would not substantially assist the Board in its determination and the claim for service connection for the Veteran’s lumbar spine disability will be granted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, supra. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.