Citation Nr: 21025475 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-38 670A DATE: April 28, 2021 ORDER Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. Service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. The Veteran’s right ankle disability was incurred in service. 2. The Veteran’s left ankle disability was incurred in service. 3. The Veteran’s right knee disability was incurred in service. 4. The Veteran’s left knee disability was incurred in service. 5. The Veteran’s lumbar spine disability was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left ankle disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to August 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2018, the Board remanded the issues for further evidentiary development. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Osteoarthritis and degenerative joint or disc disease of the lumbar spine is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. The Veteran essentially contends that he is entitled to service connection because he injured his low back, bilateral knees and bilateral ankles during a fall in service. He argues that as a machine gunner, he had to carry a backpack and 50-caliber machine gun. When he was deployed to Japan in 1982 or 1983, the Veteran and the rest of his fellow service members had to climb Mount Fuji and he slipped and fell. He states that he hurt his knees, ankles, and back during the fall but that there were no medics in the field. The Veteran reports that he had swollen knees with throbbing pain at the time of the incident. Thereafter, he also injured his ankles again playing basketball for the Marine Corps basketball team and his back during a car accident in service. He continues to have the knee, ankle, and back pain. Service treatment records reflect that in April 1983 the Veteran sought treatment for a right foot injury sustained while playing basketball. The Veteran reported that he twisted his foot playing basketball and sought treatment for edema and pain. He was diagnosed with right ligament strain and a soft tissue injury of the right foot arch area. In February 1984, the Veteran also sought treatment for back pain for the previous two weeks. The Veteran reported that he was in a motor vehicle accident two weeks earlier and that pain started immediately after the accident that increased while wearing his pack. He endorsed pain with laying in a prone position and that described a burning pain that started in the low back and radiated up the shoulders to the left side of his neck. The assessment at that time was rule out low back bilateral muscle strain. VA medical records document treatment for low back and right knee pain and a history of left knee replacement in December 2013. An April 2011 VA examination of the lumbosacral spine revealed minimal degenerative disc disease. A June 2019 x-ray documented mild-to-moderate degenerative joint disease of the right knee. Pursuant to the October 2018 remand, the Veteran was afforded a VA ankle conditions examination in January 2019. The Veteran reported that he fell and injured his ankles in service while climbing Mount Fuji and that he also experienced recurring bilateral ankle pain during training in the Marine Corps. The Veteran endorsed bilateral ankle pain and stiffness that increased in severity over time. The VA examiner diagnosed the Veteran with lateral collateral ligament sprain (chronic/recurrent) of the bilateral ankles. The Veteran was also afforded a VA knee and lower leg conditions examination in January 2019. The Veteran reported that he fell and injured his knees in service while climbing Mount Fuji with heavy gear on. He endorsed daily bilateral knee pain, stiffness, and swelling that had increased in severity over time. The VA examiner diagnosed the Veteran with right knee strain and left total knee replacement. Finally, the Veteran was also afforded a VA back (thoracolumbar spine) conditions examination in January 2019. The Veteran reported that he fell and injured his back in service while climbing Mount Fuji with heavy gear on. He further stated that he reinjured his back in a motor vehicle accident approximately one year later. He endorsed chronic low back pain and stiffness, difficulty sleeping, and pain, numbness, and tingling radiating down the side of right hip and leg that has increased in severity over time. The VA examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine and sciatic lumbar radiculopathy of the bilateral lower extremities. The VA examiner opined that the Veteran’s bilateral ankle, bilateral knee, and low back disabilities were less likely than not related to service. The VA examiner based his negative nexus opinion on the absence of service treatment records demonstrating injuries of the bilateral knees and ankles. The VA examiner also relied on the absence of continuing treatment records for the Veteran’s low back following the 1984 treatment for back pain due to a car accident until the 2011 x-ray examination. Significantly, however, the VA examiner disregarded the Veteran’s hearing testimony that he was unable to attend sick call when on the field at the time of his injury climbing Mount Fuji and that he was attended to by Navy corpsmen and that he has continued to have symptoms since service, which he self-treated until the symptoms were bad enough to seek care from a doctor. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). After review of the record, the Board finds that service connection for a bilateral ankle disability, bilateral knee disability, and a lumbar spine disability is warranted. Turning to the third criterion, a nexus to service, the Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as low back pain and stiffness, bilateral ankle and knee pain, stiffness, and swelling. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the Board finds that the Veteran is competent to report that he first experienced low back, ankle, and knee pain in service, which he attributed to a slip and fall climbing Mount Fuji, while carrying a backpack and 50-caliber machine gun and that he further aggravated his low back in a car accident and his ankles playing basketball during service, and that his statements in this regard have been consistent from that time to the present. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). There is no reason to doubt the credibility of the Veteran’s reports, particularly given the consistency of the statements. Therefore, the Board finds that the Veteran has had continuous low back pain, bilateral ankle pain, and bilateral knee pain since service. The above reflects that the evidence before the Board as to the issue of whether the Veteran’s symptoms of a bilateral ankle disability, bilateral knee disability, and a lumbar spine disability symptoms are related to service consists of credible lay statements indicating that the Veteran had injuries and treatment for his low back, ankles, and knees in service, and he has experienced signs and symptoms of these disabilities since that time. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing 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”). In these circumstances, a remand for a VA opinion on this issue 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”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As it is clear from a review of the evidence and argument of record that the Veteran developed chronic bilateral ankle, bilateral knee, and lumbar spine disabilities in service, another formal nexus opinion is not required. See 38 C.F.R. § 3.303(a). Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a bilateral ankle disability, bilateral knee disability, and a lumbar spine disability is granted. 38 U.S.C. §§ 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.