Citation Nr: 21029065 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-00 389 DATE: May 12, 2021 ORDER Entitlement to service connection for a bilateral lower extremity neurological disorder diagnosed as essential tremors is granted. Entitlement to service connection for a right knee disorder is denied. FINDINGS OF FACT 1. A bilateral lower extremity neurological disorder diagnosed as essential tremors had its' onset on active duty. 2. The preponderance of the evidence shows that a right knee disorder is not present in service or until many years thereafter and it is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral lower extremity neurological disorder diagnosed as essential tremors have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a right knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1113, 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 in the United States Army from October 1972 to October 1992. He earned a Parachutist badge and a Ranger tab. In a July 2018 decision issued by a different Veterans' Law Judge the Board of Veterans' Appeal (Board), among other things, denied service connection for left and right knee disorders as well as left and right lower extremity radiculopathy. The Veteran appealed the denials to the Court of Appeals for Veterans Claims (Court). In a May 2019 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the July 2018 Board decision to the extent that it denied service connection for left and right knee disorders as well as left and right lower extremity radiculopathy. In October 2019, the Board remanded the appeal. In a February 2021 rating decision, the regional office (RO) granted service connection for the left knee disorder. Therefore, the Board finds that this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). As to the claims of service connection for left and right lower extremity radiculopathy, the Board has recharacterized these claims as a single claim of "service connection for a bilateral lower extremity neurological disorder diagnosed as essential tremors" to comply with the JMPR and to better reflect both the Veteran's intent when filing the claim and the medical evidence found in the claims file. Post-JMPR and Remand Compliance Initially, the Board finds that the post-Remand development both addressed the concerns raised in the JMPR as well as complied with the Remand because the VA examinations and addendum dated in February 2021 provided opinions as to the diagnoses and etiology of the Veteran's disabilities based on all theories of entitlement which opinions are supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, the Veteran's in-service duties as a Ranger and a parachutist, and controlling medical literature as well as supported by medical reasoning. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the JMPR and Remand because while the appeal was in Remand status all identified and available VA and private treatment records, including the available post-1992 treatment records from the San Juan VA Medical Center and the Veteran's private treatment records from Mayaguez Orthopedic were obtained and associated with the record. Id. In this regard, in March 2020 the San Juan VA Medical Center notified the RO that they did not have any 1992 to 2015 treatment records of the Veteran except for some records dated in 1993 which they had mailed to the RO. Moreover, while the post-March 2020 record does not reveal these 1993 VA treatment records, the pre-March 2020 VA treatment records do. Therefore, given the fact that JMPR stated that these records were pertinent only as to his claim of service connection for a neurological disability, the fact that the Board is granting the claim of service connection for a neurological disability, and the fact that the record already contains VA treatment records from 1993, the Board finds that the RO complied with the concerns raised by the JMPR and complied with the Remand. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claims The Veteran claims that service connection is warranted for a bilateral lower extremity neurological disorder and a right knee disorder because they are due to his military service including the stress he placed on his body as a Ranger and a parachutist. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The bilateral lower extremity neurological disorder As to a current disability, the Veteran's bilateral lower extremity neurological disorder is diagnosed as essential tremors. See, e.g., VA examination dated in February 2021. As to an in-service injury, the Veteran's service records document several instances where the Veteran was seen because of tremors or shaking in the legs and/or upper body. See, e.g., service treatment records dated in July 1975, March 1982, September 1987, and August 1992. In fact, in July 1975 the Veteran was diagnosed with recurrent Bell's Palsy. Likewise, at the August 1992 separation examination the Veteran reported a history of weakness/trembling in his legs. Lastly, as to a relationship between the Veteran's post-service bilateral lower extremity neurological disorder diagnosed as essential tremors and the injury while on active duty (i.e., tremors or shaking in the legs), VA treatment records dated in February 1993, just 4-months after the Veteran's 20 years of active duty, document his complaints and treatment for tremors. Moreover, the February 2021 VA examiner opined that the Veteran bilateral lower extremity neurological disorder diagnosed as essential tremors was related to the tremors or shaking in the legs he was seen for while on active duty. Tellingly, while the record on appeal contains conflicting opinions as to the nature of the Veteran's bilateral lower extremity neurological disorder (see, e.g., VA examinations dated in May 2015 and February 2021), the February 2021 VA examiner's opinion that his essential tremors are due to his military service is not directly contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, the Board finds the February 2021 VA examiner's opinion both competent and credible as well as the most probative evidence of record because it was provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Therefore, the Board finds that the criteria for granting service connection for a bilateral lower extremity neurological disorder diagnosed as essential tremors have been met and service connection is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The right knee disorder As to a current disability, the post-service record shows the Veteran being diagnosed with right knee meniscal tear, status post arthroscopy, dated in 2013, as well as arthritis. See, e.g., VA examinations dated in September 2015 and February 2021. Additionally, the Veteran service personnel records show he earned a Parachutist badge and a Ranger tab. Next, the Board notes that service treatment records show the Veteran was seen in October1976 for knee pain after falling in a ditch. A January 1979 report reveals that he injured his right leg while playing ball. A September 1985 report indicates that the Veteran received a dog bite to his right knee. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability, such as pain. See Davidson, supra. However, when seen in October 1976 for the right knee problem the diagnoses were abrasions. Likewise, when seen in January 1979 nothing was said about the right knee having a diagnosis but instead the examiner diagnosed a torn groin muscle. Furthermore, the subsequent and earlier service treatment records, including the April 1969, May 1970, June 1970, November 1970, May 1972, June 1975, March 1976, June 1980, June 1984, December 1985, December 1988, and August 1992 examinations, are otherwise negative for complaints, treatment for symptoms, and/or a diagnosis of a right knee disorder. In fact, at the May 1970, May 1972, March 1976, June 1984, December 1988, and August 1992 examinations the Veteran specifically denied having a history of a trick or a locked knee. Moreover, at the April 1969, June 1970, November 1970, June 1975, June 1980, June 1984, December 1985, December 1988, and August 1992 examinations it was opined that his lower extremities were normal except for pes planus. These medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly the Board finds, as the April 1969, June 1970, November 1970, June 1975, June 1980, June 1984, December 1985, December 1988, and August 1992 examiners found, that the Veteran's right knee injury and symptoms while on active duty were transient in nature and resolved by the time he separated from service. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current right knee disorders despite the injury and symptoms seen on a few occasions while on active duty and his duties as a Ranger and a parachutist. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems and the negative findings by the examiners when the Veteran sought treatment for his right knee, weights against his current claim. See Owens, supra. Overall, the Board must find that the service records provide highly probative evidence against this claim. Similarly, the post-service record does not show the Veteran being diagnosed with arthritis in the right knee in the first post-service year. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for a right knee disability. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the record does not show that the Veteran had a continued problem with a right knee disorder in and since service. In fact, as noted above, the April 1969, June 1970, November 1970, June 1975, June 1980, June 1984, December 1985, December 1988, and August 1992 examiners opined that his lower extremities were normal; providing highly probative evidence against the claim. Likewise, and more importantly, the post-service is negative for any complaints, diagnoses, or treatment for a right knee disorders until, at the earliest, 2013-over a decade after his 1992 separation from active duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b); Also see Mayaguez Orthopedic treatment records dated in April 2013 and June 2013; magnetic resonance imaging evaluation (MRI) of the right knee dated in April 2013; Dr. Carlos Cardona letter dated in July 2019. This fact would seem to support the findings of the examiners in service who provided evidence against the claim, as noted above. Given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative evidence, overall, against this claim. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a right knee disorder in and since service despite the documented injury and symptoms seen on a few occasions while on active duty and his duties as a ranger and parachutist. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). For the reasons noted above, the Board finds that the post-service medical records provide highly probative evidence against this claim. The Board also finds that the most probative evidence of records shows that the Veteran's current right knee disorder is not due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, Dr. Carlos Cardona in a letter dated in July 2019 opined that the Veteran's post-service right knee arthritis he had treated him for since 2013 was due to his military service because the appellant had multiple parachute jumps during which he sustained multiple injuries to his knees while on active duty. However, the Board does not find Dr. Cardona opinion probative because, as discussed above, service treatment records are negative for any right knee injuries due to parachute jumps while on active duty. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Likewise, the Board does not find the opinion probative because it does not account for the over decade long gap between the Veteran's separation from service in 1992 and first seeking treatment in 2013. Id. On the other, in the February 2021 VA examination and addendum it was opined that the Veteran's right knee disorder was not due to his military service. Moreover, the Board finds the VA examiner's opinions both competent and credible as well as the most probative evidence of record because, unlike Dr. Cardona's, they were provided after a review of the record on appeal as well as supported by citation to evidence found in the record including the instances of treatment for a right knee injury while on active duty, the Veteran's duties as a Ranger and parachutist while on active duty, and the multi-year gap between the Veteran's separation from service and hid first seeking medical treat for the right knee post-service. See Owens, supra; Guerrieri, supra. Tellingly, the February 2021 VA examiner's opinion is also the reason the RO granted him service connected for a left knee disorder while that issue was in Remand status. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his current right knee disorder). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran's right knee disorder is not due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a right knee disorder. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Simply stated, the service records, the post-service treatment records, and the best medical opinion evidence in this case provides highly probative evidence against this claim that the Board cannot ignore. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.