Citation Nr: 21029474 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-01 659 DATE: May 13, 2021 ORDER The application to reopen the claim of entitlement to service connection for lumbar spine is granted. The application to reopen the claim of entitlement to service connection for right knee strain is granted. The application to reopen the claim of entitlement to service connection for left knee strain is granted Entitlement to service connection for degenerative disc disease (DDD), osteoarthritis, and spondylosis of lumbar spine is granted. Entitlement to service connection for right knee patellofemoral syndrome is granted. Entitlement to service connection for left knee patellofemoral syndrome with meniscal tear is granted. Entitlement to service connection for left acromioclavicular joint osteoarthrosis is granted. FINDINGS OF FACT 1. In a December 2014 rating decision, the RO denied service connection for lumbar spine DDD and arthritis, right knee strain, and left knee strain. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final December 2014 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection lumbar spine DDD and arthritis, right knee strain, and left knee strain and raises a reasonable possibility of substantiating the claims. 3. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability is related to service. 4. The evidence is at least evenly balanced as to whether the Veteran's right knee disability is related to service. 5. The evidence is at least evenly balanced as to whether the Veteran's left knee disability is related to service. 6. The Veteran's current left shoulder disability is related to service. CONCLUSIONS OF LAW 1. The December 2014 rating decision denying service connection for lumbar spine DDD and arthritis, right knee strain, and left knee strain is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening the claims of service connection for lumbar spine DDD and arthritis, right knee strain, and left knee strain is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for DDD, osteoarthritis, and spondylosis of lumbar spine have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for left knee patellofemoral syndrome with meniscal tear have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left shoulder osteoarthritis have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1996 to February 1999, October 2001 to August 2002, and July 2005 to November 2006. This matter came to the Board of Veterans' Appeals (Board) on appeal from November 2016 and December 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the November 2016 rating decision, the RO reopened the claims for entitlement to service connection for left knee meniscal tear and lumbar spine DDD and arthritis and denied the claims on the merits. The RO denied reopening the claim for entitlement to service connection for right knee strain. The Veteran disagreed with the RO's determination and a Statement of the Case (SOC) was issued in October 2017 addressing the matters. In the October 2017 SOC, the RO reopened the claim for entitlement to service connection for right knee strain and denied the claim on the merits. The Veteran timely appealed. In the December 2017 rating decision, the RO denied entitlement to service connection for left shoulder condition. The Veteran disagreed with the RO's determination and a SOC was issued in May 2018 addressing the matter. The Veteran timely appealed. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In January 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record on appeal. New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 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). 1. Lumbar Spine, Right Knee, Left Knee As set forth above, in a December 2014 rating decision, the RO denied entitlement to service connection for lumbar spine DDD and arthritis, right knee strain, and left knee strain disabilities. With the respect to the lumbar spine disability, the RO found no evidence a lumbar spine disability incurred in or was caused by service. With respect to bilateral knees, the RO found no evidence of in-service treatment or current diagnosed disabilities. The Veteran was notified of his appellate rights in a December 2014 letter. He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO's December 2014 rating decision is final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claims of service connection for lumbar spine DDD and arthritis, right knee strain, and left knee strain. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in December 2014. With respect to the right and left knee claims, the evidence of record includes an August 2016 VA clinical record showing a diagnosis of left knee meniscal tear. A May 2017 VA clinical record shows a diagnosis of bilateral knee patellofemoral syndrome. With respect to all claims, an August 2017 letter from a VA physician, who opined that the Veteran's left shoulder pain, chronic back pain, and chronic bilateral knee pain more likely began while on active duty service. Additionally, a July 2019 letter from a private acupuncturist opined that the Veteran's low back and bilateral knee conditions are the type of injuries indicative of the physical activity done by the Veteran in the military. Given the basis for the prior denial of the claims, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claims of service connection for lumbar spine DDD and arthritis, right knee strain, and left knee strain and raises a reasonable possibility of substantiating the claims. Reopening of the claims is therefore warranted. Turning to the merits in this case, for the following reasons, the Board finds that service connection for lumbar spine, right knee, and left knee disabilities are warranted. In this case, the evidence of record indicates lumbar spine, right knee, and left knee disabilities. Specifically, August 2016 and May 2017 VA clinical records shows diagnoses of bilateral knee patellofemoral syndrome, and left knee meniscal tear. Additionally, VA clinical records dated in September 2016 and November 2019 shows diagnoses of lumbar DDD and osteoarthritis, and lumbar spondylosis. Consequently, the first element of service connection has been met with regard to each claim. The evidence of record indicates that an in-service disease requirement has been met. In an April 2016 letter, L.C. reported that he served with the Veteran as his platoon team leader, and recalls the Veteran experiencing back pain in 1997 during a non-routine flack vest 4-mile run. The Veteran approached L.C. about having felt he had hurt something in his back and was advised to speak to their platoon sergeant about going to a medic to have it checked out. In the Veteran's October 2016 Application for Compensation or Pension (VA 21-526), the Veteran reported the onset of lumber DDD was in 1997 during a non-routine 4-mile run while wearing heavy flank vest and personal amour. He noted that his lumbar condition has been chronic ever since service. The Veteran reported the onset of bilateral knee pain was while he was a daily practicing infantryman. The Veteran stated he was told not to go to sick call, as he was an infantryman and needed to suck it up and get back to work. He further stated that he has continued to experience bilateral knee pain since service. At his January 2020 Board hearing, the Veteran testified that he was in good health prior to service, and due to his duties as an infantryman, he experienced these conditions in service and has continued to experience symptoms since service. In a January 2020 letter, W.P. reported that he served with the Veteran and they participated in numerous missions. W.P stated that due to the vigorous physical strength and stamina needed to be an infantryman, the wear and tear on the Veteran's lower body and back began to take its toll. W.P. noted that during the last months of deployment the Veteran mentioned to squad members that his back was in pain and stiff. W.P. further noted, that being a hardcore and motivated soldier, the Veteran attempted to "suck it up" which unfortunately was the frame of mind engrained in him. Here, the competent and credible lay statements from the Veteran, L.C. and W.P. demonstrates the Veteran exhibited symptoms during service. This is sufficient to meet the second element of service connection with regard to each claim. In an August 2017 letter, a VA physician stated the he provided primary care to the Veteran and had reviewed the Veteran's active duty medical records. The VA physician noted the Veteran was seen for allergic rhinitis and left shoulder pain. The VA physician opined as there was no documentation for seeking care for, inter alia, chronic back pain and chronic bilateral knee pain, it is as likely as not that these conditions began while he was on active duty. In an October 2017 VA medical opinion, the examiner opined that the Veteran's lumbar spine and bilateral knee conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was the Veteran's STRs are silent for back or knee symptoms or diagnoses, and the first available documentation of back pain/work-related injury was in 2013. The examiner noted that there is no documentation of evaluation or treatment for back or knee conditions in all available in-service and post-service prior to 2013. The examiner concluded that available medical records lack evidence to support the Veteran's lumbar spine and bilateral knee conditions incurred during active service. In a July 2019 letter, a private acupuncturist opined that it is more likely than not the Veteran's chronic pain syndrome is related to military duty. The rationale was the Veteran tests positive for all three classic low back disc tests: straight let raise test, walking on heels then toes test, and seated slump test. Also, test performed with a positive indication for bilateral knee damage: Lachman's test, pivot test, reverse pivot test, McMurray's test, and the valgus test. The acupuncturist noted that these types of injuries are indicative of the physical activity (running for long periods of time with heavy equipment) the Veteran would have done in the military service and military training. In this case, the Board finds the October 2017 VA opinion that the Veteran's lumbar spine and bilateral knee disabilities are not related to service is of little, if any, probative value. Here, the physician relied on the absence of documentation in the STRs and did not consider the Veteran's lay statements of lumbar spine and bilateral knee symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology [of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence ). The Board could remand the claim for another medical opinion, but such a request 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 current diagnoses, VA physician opinion, acupuncturist opinion, STRs, and the competent and credible lay statements of lumbar spine and bilateral knee symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran's lumbar spine, right knee, and left knee disabilities are related to service. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran's lumbar spine, right knee, and left knee disabilities are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection is warranted for lumbar spine, right knee, and left knee disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Left Shoulder In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, an October 2017 VA examination reports shows a diagnosis of left acromioclavicular joint osteoarthrosis. Thus, the first element of service connection has been met. The evidence of record indicates that the in-service disease or injury requirement has been met. The Veteran's STRs shows that at his November 1998 separation examination, his upper extremities was noted as abnormal. The examiner noted limited range of motion at left arm due to pain. A of diagnosis of shoulder strain was noted. On the accompanying Report of Medical History, the Veteran reported having a painful or trick shoulder. He noted that he fell with an outstretched arm in October 1998. At his January 2020 Board hearing, the Veteran testified that he injured his left shoulder during a night mission training exercise in 1998 prior to service separation. He indicated that he fell with his left shoulder extended with his weapon. The Veteran noted that he has continued to have left shoulder problems since service and is currently undergoing treatment. Here, the STRs along with the competent and credible lay statements from the Veteran demonstrates that he exhibited symptoms during service. This sufficient to meet the second element of the service connection claim. In an August 2017 letter, a VA physician stated that he provided primary care to the Veteran and had reviewed the Veteran's active duty medical records. The VA physician noted the Veteran was seen for, amongst other things, left shoulder pain. The VA physician opined that it is more likely than not the Veteran's left shoulder condition began while the Veteran was in the service. In an October 2017 VA examination report, the examiner opined that the Veteran's left acromioclavicular joint osteoarthrosis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was the Veteran's October 1998 separation exam shows reports of shoulder strain and painful left shoulder, however, the remainder of the Veteran's STRs are silent for shoulder concerns. The examiner stated the first documented report of left shoulder pain in post-service treatment records was in June 2017, which is 19 years after the reported fall. The examiner noted that was the first time the Veteran addressed any concerns related to the left shoulder post-service, suggesting and indicating that the shoulder strain in 1998 had resolved. The examiner further noted that "minimal joint osteophytosis" of the AC joint is not a finding that is related to his fall 19 years prior but is rather a radiographic finding that is commonly seen with advancing age and overuse of the shoulder over time. It is not post-traumatic. The Board finds the October 2017 VA opinion that the Veteran's current left acromioclavicular joint osteoarthrosis is not related to service is of minimal probative value. Here, the examiner failed to consider competent and credible evidence of the Veteran's report of the onset of his left shoulder symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence ). Although the VA physician did not provide a detailed rationale for his August 2017 opinion, he nonetheless concluded based upon an examination of the Veteran and medical evidence, the current left shoulder condition was related to his active service. The opinion is thus 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). There is no contrary medical opinion in the evidence of record and no other probative evidence of record which attributes the Veteran's current left shoulder disability to any other cause. The Veteran indicated in his lay statements that he experienced left shoulder symptoms in and since service. The Board finds the Veteran's statements in this regard to be competent and credible. (Continued on the next page) Accordingly, in light of the current left acromioclavicular joint osteoarthrosis diagnosis, Veteran's lay statements, August 2017 VA physician opinion, and resolving reasonable doubt in the Veteran's favor, service connection for left acromioclavicular joint osteoarthrosis 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 R. Walker, 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.