Citation Nr: 21027538 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-01 479 DATE: May 6, 2021 ORDER Entitlement to service connection for back disorder is granted. Entitlement to service connection for a right knee disorder is granted. Entitlement to service connection for a left knee disorder is granted. Entitlement to service connection for an intestinal disorder is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence of record is at least in equipoise that the Veteran's back disorder was caused by his active duty service. 2. Resolving reasonable doubt in the Veteran's favor, the evidence of record is at least in equipoise that the Veteran's right knee disorder was caused by his active duty service. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record is at least in equipoise that the Veteran's left knee disorder was caused by his active duty service. 4. The Veteran does not have a current diagnosis of an intestinal disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for back disorder have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a right knee disorder have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a left knee disorder have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for an intestinal disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 2008 to August 2009; he was awarded the Combat Infantry Badge. He also had service in a Reserve component from October 2011 to May 2014 and in the National Guard during periods of active duty training (ADT) and inactive duty training (IDT) from May 2006 to October 2011. These matters were previously before the Board of Veterans' Appeals (Board) in December 2019 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for further development. In a January 2021 rating decision, service connection was granted for hemorrhoids. As this was a full grant of the benefits sought on appeal the matter is no longer before the Board for appellate consideration. SERVICE CONNECTION "Active military, naval, or air service" includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. Active military, naval, or air service also includes any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training is full-time duty performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training means duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Veteran is in receipt of a Combat Infantry Badge. The Veteran is therefore entitled to the application of 38 U.S.C. § 1154(b) for combat Veterans. Section 1154(b) aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. His combat experience is well-documented. 1. Entitlement to service connection for back disorder 2. Entitlement to service connection for a right knee disorder 3. Entitlement to service connection for a left knee disorder The Veteran has current diagnoses of scoliosis of the thoracolumbar spine, spondylosis at L4, L5 and the thoracolumbar junction (see September 2019 radiologist report and September 2020 VA-contract back examination report), and right and left knee strain (see January 2021 VA-contract knee examination report). The Veteran contends that his current back disorder and right and left knee disorders are related to his military service. Specifically, he reported his lower back problems are due to the rigorous mission, wearing heavy tactical combat gear, and carrying and traveling with heavy equipment during his deployment in Afghanistan. He further reported having knee problems in service after difficulty running and doing dismounted patrol whereas he had to walk for 15 hours a day. As noted, the Veteran served in combat and the Board finds his statements are consistent with the circumstances and conditions of his service as infantryman while he served in Afghanistan. His statements are sufficient to establish that he incurred back and knee problems while serving. The Veteran's service treatment records show he had intermittent knee pain in August 2008. A March 2009 service treatment record shows the Veteran was seen with complaints of left knee pain and discomfort, and a diagnosis of left knee pain was rendered. Furthermore, an October 2011 physical profile noted the Veteran's medical condition included back and knee pain. On September 2020 VA-contract examination, the Veteran reported current symptoms of constant throbbing pain in his lower back, shooting pain up and down his back and occasional back spasms. The examiner opined that the Veteran's claimed back disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The rationale for the opinion was that the Veteran's diagnosed scoliosis was more likely than not congenital and was not symptomatic until later in life and the diagnosed spondylosis is secondary to the effects over time of the scoliosis of the spine. The examiner further noted that the Veteran's back pain was not notable enough to seek medical attention or investigation until 2019, although admitted it was mentioned in 2011. On January 2021 VA-contract knee examination the Veteran reported current symptoms of bilateral diffuse knee pain, intermittent daily pain and a dull ache which is worse with prolonged standing and stairs. He stated it feels like "bone on bone". In a January 2021 addendum report, the examiner opined that the Veteran's claimed right and left knee disorders are less likely than not consistent with the circumstances, conditions or hardships, of his military service and provided rationale. A March 2021 VA-contract medical opinion, the examiner further opined that the Veteran's claimed left knee disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The rationale for the opinion was that the Veteran was treated in service for an acute, self-limited episode of stabbing left knee pain diagnosed as sprain/strain, which is a nonspecific diagnosis, which had resolved during service. In this case, the Board finds that service connection for back and right and left knee disorders is warranted. The evidence shows the Veteran experiences back and right and left knee pain, notwithstanding VA-contract examiners' findings regarding thoracolumbar scoliosis as a congenital disorder and thoracolumbar spondylosis secondary to the scoliosis, as well as bilateral knee strain, which the examiner considers a nonspecific diagnosis. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a diagnosis is not required to establish the current disability element and that pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Here, the evidence shows the Veteran is employed as a corrections officer. On September 2020 VA-contract examination, the Veteran related that his back disorder impacts his ability to work in that he cannot lift more than 50 pounds due to pain; nor can he bend to pick things off the floor. He requires proper ergonomics at his workstation. He uses a stand-up desk to allow a change from sitting to standing because it is difficult to sit more than 20 minutes without pain. In an October 2020 personal statement in support of his claims, the Veteran noted that the recurring knee and lower back pain affects his job because his job requires walking and climbing stairs. On January 2021 VA-contract examination, the Veteran related that both knees are painful with prolonged standing and going up and down stairs. The Board finds the Veteran's statements competent and credible. The Board finds also that the evidence is at least in relative equipoise as to whether the Veteran's back and bilateral knee pain causes a functional impairment of earning capacity. Therefore, giving the benefit of the doubt to the Veteran, the Board finds that the first element of service connection has been met for the back and right and left knee disorders. Consequently, the current disability requirement has been met with regard to each claim. As to whether the current back and right and left knee disorders are related to service, the Veteran has stated that his back and knees were the result of duties performed in service consistent with the circumstances and conditions of his service as infantryman while serving in combat. The Board finds that as a combat Veteran he is competent to make these lay statements. The Board has no reason to doubt the credibility of these statements, and gives great probative weight to these lay statements. Thus, the second element of service connection has been met. The remaining issue is whether a causal relationship between the Veteran's current back and right and left knee disorders exists. The September 2020 and January 2021 VA-contract examiners found it was less likely as not that the claimed back and bilateral knee disorders were causally related to his service. The Board finds that the back examiner's opinion is too speculative in nature and of little probative value. For example, the September 2020 examiner opined that the Veteran's diagnosed spondylosis is secondary to the effects over time of the scoliosis of the spine. September 2019 x-rays of the thoracic spine does show thoracolumbar scoliosis and spondylosis of the mid thoracic region. However, the Veteran's claimed back disorder is related to the lower back or lumbar spine area. X-rays of the lumbar spine show spondylosis at L4, L5 where scoliosis is not present. The January 2021 examiner did not give adequate consideration to the Veteran's lay statements regarding the impact and intensity of daily missions he engaged in that included jumping in and out of military vehicles while wearing full gear and walking for miles across rocky and mountainous terrain. The Board therefore assigns little probative value to that opinion. The Board concludes in this instance that the evidence for and against the Veteran's claims are in relative equipoise. As such, service connection for a back disorder and right and left knee disorders is granted. 4. Entitlement to service connection for an intestinal disorder The Veteran underwent a VA intestinal conditions examination in December 2016. At that time, he reported that he no longer has issues with his intestines. He stated he had issues with bowel movements in 2008 but never sought treatment. He stated he does not have a bowel disorder at this time. He related he had a colonoscopy in 2011 that was unremarkable with the exception of small non-bleeding hemorrhoids. There was no diagnosis rendered for an intestinal disorder. As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a diagnosis of an intestinal disorder during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the claim for service connection for intestinal disorder is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.