Citation Nr: 21029272 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-33 282 DATE: May 13, 2021 ORDER Entitlement to service connection for chronic cephalgia (headaches) is granted. Entitlement to service connection for degenerative joint disease and osteoarthritis of the lumbar spine (low back disability) is granted. Entitlement to service connection for post traumatic residual degenerative joint disease of the left knee (left knee disability) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's headaches began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran's low back disability began during active service. 3. The evidence is at least evenly balanced as to whether the Veteran's left knee disability is related to an in-service injury. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for headaches are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for low back disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to September 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for chronic headaches, left knee condition, and lumbar/low back pain. In April 2017 the Veteran filed a notice of disagreement (NOD) and in September 2019 RO issued a statement of the case (SOC). In October 2019 the Veteran filed a substantive appeal (via VA Form 9). In a March 2020 decision, the Board denied service connection for chronic headaches. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). In January 2021, while the matter was pending before the Court, the Veteran's attorney and VA's General Counsel filed a joint motion for remand (JMR). In January 2021 the Court granted the parties' motion and remanded the matter for action consistent with the JMR. In the March 2020 decision the Board also remanded the Veteran's claim for further evidentiary development, specifically, to schedule the Veteran for a VA examination to determine the etiology of the Veteran's low back and left knee disabilities. As will be discussed below, the Board finds that the RO has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Headaches A January 2017 private physician diagnosed the Veteran with chronic cephalgia. Thus, a current disability has been demonstrated. An April 1985 service treatment record (STR) indicates that the Veteran had an abrasion on his head and experienced headaches when bending forward. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current headaches and his military service. The Veteran reported to his private physician that his headaches began during service and have persisted since that time. The Veteran is competent and credible to describe the continuity of symptomatology for his headaches as it existed from his time of service, and the progressive worsening of symptoms through the years. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377. In a January 2017 letter, the Veteran's private physician opined that the Veteran's headaches began during service. While the private physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). Although the private physician's rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, it is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, there is no contrary medical opinion in the evidence of record. Given the Veteran's credible lay statements, the in-service complaint of headaches, and the positive nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's headaches are related to 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 headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Low back and left knee disabilities A January 2017 private physician diagnosed the Veteran with degenerative joint disease and osteoarthritis of the lumbar spine. The same private physician diagnosed the Veteran with post traumatic residual degenerative joint disease of the left knee complicated by instability. A March 2020 VA examiner diagnosed the Veteran with left knee strain and lumbosacral strain. Thus, current low back and left knee disabilities have been demonstrated. The Veteran reported to his private physician that his back pain began in service. Also, the Veteran reported that he stepped in a hole and sustained a left knee injury while stationed in Germany. At the March 2020 VA examination the Veteran reported that he injured his left knee playing basketball but did not report his injury. A June 1982 service treatment record (STR) note indicates that the Veteran injured himself playing basketball in service. Also, the Veteran's DD 214 indicates his military occupational specialty (MOS) was a mechanic which is an MOS that is associated with physical stress. Taken together, the June 1982 STR and the Veteran's MOS indicates that his claimed lower back and left knee symptoms are consistent with the places, types and circumstances of the Veteran's service, and are competent and credible. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current low back and left knee disabilities and his military service. In a January 2017 letter, the Veteran's private physician opined that the Veteran's low back disability began during service and that his left knee disability is related to an in-service injury. While the private physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn, 19 Vet. App. at 432-433. Although the private physician's rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, it is entitled to some probative weight. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. A March 2020 VA examiner opined that the Veteran's low back and left knee disabilities are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there is no specific STR in which the Veteran was treated for his left knee or low back. The VA examiner explained that there is no evidence that the Veteran sought medical attention for his condition within a year after separation from active duty and that he claimed to have low back pain years after separating from active duty. The VA examiner also explained that the Veteran has not sought medical attention for his left knee or low back and takes no pertinent medications. Although the March 2020 VA examiner reasoned that the Veteran has not sought medical attention for his left knee and low back, a January 2017 private treatment record shows that he has been treated for these disabilities. Therefore, the March 2020 VA opinion is based on an inaccurate history and afforded no probative value. Monzingo, 26 Vet. App. at 107 ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Given the Veteran's credible lay statements and the positive nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's left knee and low back disabilities are related to 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 low back and left knee disabilities 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 James R. Miller, 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.