Citation Nr: 21025491 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-07 856 DATE: April 28, 2021 ORDER Entitlement to service connection for lumbosacral strain is granted. Entitlement to service connection for a left knee disability manifested by pain is granted. Entitlement to service connection for right knee strain is granted. Entitlement to service connection for adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance, secondary to service-connected lumbosacral strain, left knee disability manifested by pain, and right knee strain, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced that the Veteran has lumbosacral strain related to his active duty service. 2. The evidence is at least evenly balanced that the Veteran has a left knee disability manifested by pain related to his active duty service. 3. The evidence is at least evenly balanced that the Veteran has right knee strain related to his active duty service. 4. The Veteran’s adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance is caused by his now service-connected lumbosacral strain, left knee disability manifested by pain, and right knee strain. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain are met. 38 U.S.C. §§ 1110, 1131, 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 knee disability manifested by pain are met. 38 U.S.C. §§ 1110, 1131, 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 right knee strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance, as secondary to service-connected lumbosacral strain, left knee disability manifested by pain, and right knee strain, on a causation basis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to November 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for left knee condition, right knee condition, lower back condition, and depression to include sleep disorder for compensation purposes, and found service connection for the purpose of eligibility to treatment for a mental illness was established. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript is in the claims file for review. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military 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 incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). In this case, entitlement to service connection for the disabilities claimed on appeal is warranted. 1. Entitlement to service connection for lumbosacral strain 2. Entitlement to service connection for a left knee disability manifested by pain 3. Entitlement to service connection for right knee strain The Veteran testified at the March 2021 Board hearing that due to the nature of his job duties in service, such as moving, lifting, and pushing heavy equipment, he has experienced pain in his back and knees continuously since that time and to the present day. The Veteran’s representative pointed out to the undersigned Veterans Law Judge that there was heavy lifting the Veteran would do as crew chief, as well as crawling on concrete underneath aircraft on his hands and knees and crawling inside parts of the aircraft. The Veteran also recalled a fall during service, and said he had no back trouble prior to service. In his February 2016 Notice of Disagreement, the Veteran wrote that both knees were damaged by constantly walking and kneeling on concrete and he never had any problems until he was in the Air Force. He wrote he never had any problems with his back and believes it is from walking, working on top of concrete all the time, and being bent over a bench. The Veteran’s personnel records are consistent with his statements regarding his activities and responsibilities in service. Specifically, in-service personnel records show the Veteran removed, repaired, overhauled, installed, and modified aircraft engines, hydraulic and pneumatic systems, and subsystems, and was involved in launch, recovery, and turnaround operations. He also repaired, serviced, and provided maintenance to aircraft components, systems, and related equipment. At a June 1988 prescreening prior to entering military service, it was documented that the Veteran reported no back trouble or impairment of legs. On his July 1988 enlistment examination, the Veteran reported no recurrent back pain and no trick or locked knee. A March 1990 service treatment record showed the Veteran fell from a five-and-a-half-foot ladder onto his left foot, and to rule out fracture. A May 1996 record shows upper back strain. Eight years into service, in October 1996, it was noted the Veteran had a history of knee problems. At that time, the Veteran also had a “knot” on the back of his left leg for one year which was a potential Baker’s cyst. In November 1996, radiology was done of the left knee to rule out sarcoma, lipoma, and nervous tumor. The November 1996 radiologist report included an impression of subcutaneous nodular density left upper popliteal fossa; it was still not clear as to whether the Veteran had a Baker’s cyst. It was noted the lesion did not have the ultrasound characteristics of a simple cyst or fluid collection and it more likely represented a tumor such as a lipoma, and less likely a nerve sheath tumor, soft tissue sarcoma or infrequently a lymph node metastasis. It was referred to as a left popliteal cyst, and “not a simple cyst.” A December 1996 MRI showed posterior horn medial meniscus undersurface tear and popliteal mass, and to rule out cancer “but probably lipomatous.” A January 1997 surgery removed the left knee mass and the Veteran was put on a profile due to his left knee status-post excision; the profile limitations included no running, jogging, or cycling. In a June 1998 report of medical assessment, the Veteran wrote that he had been experiencing lower back problems during service, though he did not seek medical care. Following active duty, in a February 1999 periodic report of medical history while the Veteran was serving in the Oklahoma Army National Guard, he reported recurrent back pain. In post-service VA treatment records, the Veteran has been treated for his continuing lower back pain and knee pain. In August 2015, an assessment was bilateral knee pain and lower back pain, with a notation that he had a history of lower back pain, bilateral knee pain, and Baker’s cyst resected in 1996. In May 2016, it was documented the Veteran has pain in his lower back and his knees. He was on a long-term opioid therapy for his lower back pain. A November 2016 impression included lower back pain syndrome, lumbar degenerative disc disease, and lumbar spinal stenosis, with a recommendation for L5-S1 interlaminar lumbar epidural steroid injection under fluoroscopy. The Veteran was afforded a VA examination for his claimed disabilities in October 2015. At that time, he was diagnosed with right knee strain and lumbosacral strain. The examiner did not provide a diagnosis for the left knee, but noted the functional impact of “each condition” is limited lifting and bending. Additionally, as indicated above, the Veteran’s left knee is productive of disabling pain requiring treatment and thus functional impairment. Therefore, he meets the current disability requirement for his lumbar spine, left knee, and right knee claims on appeal, even in the absence of a specific diagnosis for the Veteran’s left knee. See Saunders, 886 F.3d at 1364-65 (a diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity). At the October 2015 VA examination, the Veteran reported the date of onset of back symptoms from the early 1990s and onset of knee symptoms from 1996. Regarding his back, the Veteran stated his condition began with no specific injury and he worked as an aircraft crew chief throughout service, constantly bent over, under airplanes. The October 2015 VA examiner opined that the Veteran’s lower back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because she found no evidence of continuity of symptoms beyond a May 1996 one-time episode of back strain. Regarding his knees, the Veteran stated the condition of his knees began when he had a lipoma excised from the back of left knee and that an MRI was done on right knee at that time also since he was already in the MRI. He was told his meniscus was torn in right knee. The October 2015 VA examiner was only asked to provide an opinion on the left knee and so she did not provide an opinion on the right knee. The VA examiner opined that the Veteran’s left knee condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because no left knee diagnosis was provided on the day of examination. A December 2015 VA examination pertaining to service in the Gulf War specifically contains opinions that it is less likely than not that back joint pain and/or bilateral knee joint pain is related to a specific exposure event experienced by the veteran during service in southwest Asia because lumbosacral strain is a distinct condition with clear and specific etiologies and diagnosis, as is right knee strain a distinct condition with clear and specific etiologies and diagnosis. The examiner noted the left knee did not have a diagnosis, but then did not provide an opinion on whether it could be related to Gulf War service. As mentioned previously, the lack of official diagnosis upon examination does not serve to deny that a disability exists. As the Veteran’s left knee has experienced symptoms including pain causing functional impairment and thus impairment in earning capacity, the Veteran has a left knee disability for service connection purposes. The October 2015 VA examiner found there were no continuity of symptoms for the Veteran’s low back since May 1996 in service. The May 1996 record in service pertained to an upper back strain. However, the Veteran reported back problems in service in June 1998, and has testified to the nature of his active duty service causing a strain on his spine and has experienced symptoms ever since, which is supported by the record. Similarly, the Veteran testified to his in-service manual work causing the problems in his knees, and that he has experienced his symptoms since that time. The Veteran is competent to report continuous symptoms such as pain symptoms in the years since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medic-al evidence). There is nothing to explicitly contradict the Veteran’s testimony, and that testimony is consistent with the evidence of record. Although the Board could remand the claims to obtain a VA medical opinion, such a request for another opinion 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 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)). The above evidence is sufficient to decide the claim for the reasons indicated. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain, left knee disability manifested by pain, and right knee strain, are related to his active duty 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 these disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Service connection for adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance The Veteran claimed service connection for “sleep disorders (depression)” in his August 2015 application for benefits. In the Veteran’s representative’s August 2015 cover sheet to his application, the representative wrote the Veteran was claiming service connection for “sleep disorders, depression.” In a September 2015 report of general information, the Veteran said that he has a hard time sleeping at night, only getting around three hours, and he has a history of having nightmares. At the March 2021 Board hearing, the Veteran testified to psychiatric symptoms starting when he was in service. His depression began when he was getting married and began having problems with his wife. The Veteran testified that he did not mention this during service, and first sought treatment at VA in 2015. In his February 2016 Notice of Disagreement, the Veteran wrote he has a sleep disorder caused by pain from his back and knees. The Veteran’s service treatment records do not reflect treatment or reports of symptoms for psychiatric disability. The Veteran was assessed with anxiety, depression, and sleep disorder in an August 2015 VA treatment record. Upon screening, the Veteran’s score was suggestive of moderately severe depression. In May 2016, the Veteran was prescribed Trazodone for sleep, Alprazolam for anxiety, and Citalopram for anxiety and depression. From a November 2015 VA examination, the Veteran was diagnosed under the DSM-5 with adjustment disorder with mixed anxiety and depressed mood. The VA examiner commented that sleep disturbance is symptom of this disorder and the adjustment disorder is attributable to multiple medical problems. The examiner included that the Veteran was married in 1993 for one year and has been prescribed Trazodone, Citalopram, Alprazolam, and Diazepam, and requires mental health treatment. Under a section of the November 2015 VA examination report regarding medical diagnoses relevant to the understanding or management of the mental health disorder, the VA examiner included ulcerative colitis, a recent colectomy, and chronic knee and back pain. In this section, he wrote that the Veteran has had ongoing medical problems for many years, he began to notice sleep disturbance in 2004 which worsened in 2007. While finding there was no evidence, either documented or anecdotal, that indicates his sleep disturbance is service-connected, the November 2015 VA examiner opined that the Veteran’s adjustment disorder with mixed anxiety and depressed mood is attributable to his multiple medical problems, and that the sleep disturbance is a symptom of the adjustment disorder. In an examination report specifically pertaining to Gulf War service, it was opined by a December 2015 VA examiner that it is less likely than not that sleep disorder is related to a specific exposure event experienced by the veteran during service in southwest Asia because adjustment disorder with mixed anxiety and depressed mood is a distinct condition with clear and specific etiologies and diagnosis and this condition has not been associated with the illnesses or exposures described in Veteran's returning from the Gulf War in medical research published in peer-reviewed medical journals. As noted, the Veteran has a diagnosed psychiatric disability. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court explained that in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Considering the claim for service connection as one for any psychiatric disability provides the most favorable review of the Veteran’s claim and is consistent with the Court’s holding in Clemons. In light of the Court’s decision in Clemons, the Board has recharacterized the Veteran’s claim for depression/sleep disorder as entitlement to service connection for adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance. In consideration of the Veteran’s statements, the post-service treatment records, and the November 2015 VA medical opinion attributing the Veteran’s psychiatric disability to the Veteran’s chronic knee and back pain symptoms from disabilities service-connected herein, it is at least evenly balanced as to whether the Veteran’s adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance are related to his lumbosacral strain, left knee disability manifested by pain, and right knee strain, service-connected herein. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to adjustment disorder with mixed anxiety, depressed mood, and sleep disturbance, as secondary to lumbosacral strain, left knee disability manifested by pain, and right knee strain, on a causation basis, 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 B. Kuczynski, 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.