Citation Nr: 21026019 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-35 417A DATE: April 29, 2021 ORDER Entitlement to service connection for low back disability, claimed as back condition, is granted. Entitlement to service connection for left knee disorder is denied. Entitlement to service connection for right knee disorder is denied. FINDINGS OF FACT 1. The Veteran has a current low back disability, to include a diagnosis of spinal arthritis. 2. The weight of the probative and competent evidence supports a finding that the Veteran’s low back disability, to include spinal arthritis, had its onset during active military service, and he has had continuous symptoms of the same since separation from service. 3. The preponderance of the evidence weighs against a finding that the Veteran has, or has had at any time during the appeal period or proximate to it, a left knee disability. 4. The preponderance of the evidence weighs against a finding that the Veteran has, or has had at any time during the appeal period or proximate to it, a right knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back disability, to include spinal arthritis, have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a). 2. The criteria for entitlement to service connection for left knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1998 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the record shows that the additional development was completed, and the Board thus finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has now returned to the Board for appellate review. 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. § 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) a 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). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When 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. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a Veteran served 90 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 presumption 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. 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, 5758 (1990). 1. Entitlement to service connection for low back disability is granted. The Veteran seeks entitlement to service connection for a low back disability, claimed as back condition. See 03/07/2014 VA 21-526EZ, Fully Developed Claim (Compensation). He contends that his current low back disability resulted from an in-service back injury. See 01/23/2015 NOD. Turning to the evidence, the Veteran was afforded a VA examination in September 2014, where he was diagnosed with lumbosacral strain and mechanical back pain. 09/11/2014 C&P Exam. Further, in May 2015, the Veteran was diagnosed with chronic low back pain, mild to advanced degenerative disc disease, disc extrusion at L5-S1 resulting in spinal stenosis, and spinal arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a) and subject to presumptive service connection pursuant to 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). See 02/20/2017 Correspondence. Accordingly, the first element of service connection, current disability, is met. Regarding the second element, in-service incurrence, the Veteran’s service treatment records (STRs) reflect that the Veteran denied any spine problems at his February 1998 enlistment examination. See 04/15/2014 STR – Medical at 5. As the Veteran’s STRs reflect a normal clinical evaluation at entrance, he is presumed to be accepted and enrolled for active service in sound condition. 38 U.S.C. § 1111. Further, the Veteran’s STRs contain numerous complaints and findings related to a low back disability. First, in April 1999, the Veteran sought treatment for low back pain resulting from a back injury while playing basketball two weeks prior. Id. at 75 and 77. In January 2000, the Veteran reported chronic low back pain, which he attributed to a weight-lifting injury two months earlier, and was given a provisional diagnosis of chronic mechanical back pain. See id. at 52. The Veteran was treated for chronic mechanical back pain in March 2000, May 2000, June 2000, and July 2000. See id. at 2, 40, 42, and 43. Finally, at his May 2001 separation examination, the Veteran reported recurrent back pain with a history of chronic mechanical low back pain noted. See id. at 1 and 2. In light of the foregoing, the Board finds that the STRs establish that the Veteran suffered in-service back injuries and experienced chronic symptoms of a low back disability, to include chronic mechanical low back pain, during active duty service. As such, and resolving any doubt in favor of the Veteran, the Board finds that the second element of service connection, in-service incurrence, has been met. Turning to the third element of service connection, nexus, the Veteran was afforded a VA examination in September 2014, as noted above. See 09/11/2014 C&P Exam. The examiner diagnosed the Veteran with lumbosacral strain and noted a July 2000 diagnosis of mechanical back pain. Id. at 2. Regarding nexus, the examiner opined that it was less likely than not that the Veteran’s low back disability was incurred in or caused by the claimed in-service injury. See id. at 19. As rationale, the examiner stated that the Veteran’s STRs show a history of low back pain since childhood, and any complaints and findings related to a low back disability during service represent acute exacerbations of a preexisting condition. The examiner reported that there was insufficient data to opine whether his condition was exacerbated beyond its normal progression due to military service. Finally, the examiner opined that the Veteran’s weight was compounding his low back problems, as obesity is associated with chronic back pain. Id. VA treatment records contain a March 2014 Nursing Primary Care Note, which shows that the Veteran reported that severe back pain since active military service that was increasing in severity. See 08/28/2014 CAPRI at 2. VA treatment records also show that x-rays of the low back were performed in February 2015, resulting in a diagnosis of mild disc disease and arthritis. See 02/10/2017 Correspondence. Private treatment records also reveal that the Veteran underwent an MRI of the lumbar spine in May 2015, resulting in diagnoses of chronic low back pain, mild to advanced degenerative disc disease and disc extrusions at L5-S1 and L4-5 resulting in spinal canal stenosis, disc material and degenerative chances resulting in foraminal stenosis, and broad-based foraminal disc protrusion or developing disc extrusion at L3-4. Id. 2 and 3. The Board acknowledges the September 2014 VA examiner’s negative opinion as to nexus, however, the Board notes that the Veteran has credibly reported that he has had continuous low back pain since his documented in-service back injuries, and his STRs contain reports of recurrent low back pain in pain in March 2000, May 2000, June 2000, July 2000, and at his separation examination in May 2001. See 04/15/2014 STR – Medical at 1, 2, 40, 42, and 43. Further, post-service treatment records establish that the Veteran has consistently reported chronic low back pain since separation from service. See 08/28/2014 CAPRI at 2; see also 02/10/2017 Correspondence. As such, the Board finds that the September 2014 medical opinion is inadequate because it fails to show adequate consideration of pertinent evidence of record, including evidence of chronicity of symptoms of a low back disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In this regard, the Board notes that the Veteran is competent to describe his in-service injuries and that he has had low back pain ever since. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran has a current diagnosis of spinal arthritis, a chronic disease. In this regard, STRs show numerous reports of symptoms of a chronic low back disability, to include chronic low back pain, and the Veteran has competently and credibly reported that continuous symptoms of the same have persisted from service through the present. Based on the foregoing, the Board finds that the weight of the competent and probative evidence supports a finding that the Veteran's low back disability is related to documented in-service injuries and that symptoms of the same have continued since service. 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). Accordingly, the Board finds that service connection for a low back disability is warranted. 2. Entitlement to service connection for left knee disorder is denied. 3. Entitlement to service connection for right knee disorder is denied. The Veteran seeks entitlement to service connection for a left knee and right knee disorder, to include as secondary to his low back disorder. See 03/07/2014 VA 21-526EZ, Fully Developed Claim (Compensation). After careful review of the evidence of record, the Board concludes that the Veteran does not have a current left knee disorder or right knee disorder and has not had one at any time during the appeal period or proximate to it. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Pain may constitute a disability for VA purposes if pain results in functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 16-17 (2020). The first documented indication of any right or left knee disorder is a March 2014 Nursing Primary Care Note where the Veteran reported back and bilateral knee pain since active duty service. See 08/28/2014 CAPRI at 2. The record does not contain any other VA treatment records or private treatment records that document treatment for a right or left knee disorder. The Veteran underwent a VA examination in September 2014. 09/11/2014 C&P Exam. The September 2014 examiner made no diagnosis of a right or left knee disorder, and reported that a review of the record also revealed no evidence of a right or left knee disorder, aside from the March 2014 Nursing Primary Care Note. Upon examination, the Veteran reported experiencing “popping” for the past two years, with the left knee worse than the right. Id. at 12. The Veteran stated he was unable to play basketball due to pain. Regarding functional impact, the examiner reported that the Veteran’s claimed knee condition did not impact his ability to work. The VA examination did not indicate limitation of motion or other impairment of the knees that results in functional impairment of earning capacity. The VA examination was adequate as it was based on an in-person examination, medical expertise, and consideration of the medical history and lay evidence. In light of the foregoing, the Board finds that there is no current left or right knee disability, as the weight of the competent and probative evidence is against finding a diagnosed disorder or left or right symptoms that result in functional impairment of earning capacity. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that entitlement to service connection for a right knee disorder and a left knee disorder is not warranted, and the claims must therefore be denied. Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.