Citation Nr: 21031100 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-58 125 DATE: May 20, 2021 ORDER Entitlement to service connection for left knee patellofemoral pain syndrome (left knee disability) is granted. Entitlement to service connection for right knee patellofemoral pain syndrome (right knee disability) is granted. Entitlement to service connection for degenerative disc disease and low back strain (low back disability), secondary to service-connected right foot strain status post fracture on a causation basis, is granted. REMANDED Entitlement to service connection for hepatic structures is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's left knee disability began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran's right knee disability began during active service. 3. The Veteran's low back disability is a result of his right foot strain status post fracture. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for low back strain, secondary to right foot strain status post fracture, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1992 to December 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied service connection for left and right knee patellofemoral pain syndrome and low back strain. In November 2016 the Veteran filed a notice of disagreement (NOD) and in September 2017 the RO issued a statement of the case (SOC). In November 2017 the Veteran filed a substantive appeal (via VA Form 9). In April 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is not currently associated with the record. However, as the instant decision grants the benefit sought in full or remands the issues for additional development that will not be affected by the hearing testimony, there is no prejudice to the Veteran by proceeding without the hearing transcript. 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 service 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). 1. Left and right knee disability A February 2015 private physician diagnosed the Veteran with left and right patellofemoral pain syndrome. Thus, a current disability has been demonstrated. In a May 2017 Memorandum, the Director of VA Records Management Center (RMC) found that the Veteran's service treatment records (STRs) were unavailable. In these circumstances, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). In the November 2016 NOD the Veteran stated that the weight of the equipment he wore during service caused his current knee disabilities and that his STRs would confirm he was prescribed Ibuprofen on numerous occasions to ease pain and swelling. The Veteran's DD 214 indicates that his military occupational specialty (MOS) was an infantryman which is associated with physical labor. Therefore, the stress put on the Veteran's knees is consistent with the places, types, and circumstances of service, and is 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). Taken together, the Veteran's missing STRs, his contention that wearing equipment for long durations of time caused him knee pain, and his MOS meets the in-service injury or disease requirement. The remaining question is whether the Veteran's left and right knee disabilities are related to his military service. The Veteran contends that his knee disabilities are the result of wearing heavy equipment for long durations in service and that his symptoms have persisted since that time. The Veteran is competent to report continuous knee symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is no evidence that explicitly contradicts the Veteran's reports and they are consistent with the evidence of record and the circumstances of his service. Therefore, the Board finds that the reports of continuous knee symptoms in the years since service are credible. Additionally, at an August 2014 private examination the Veteran reported that he had to carry heavy loads of equipment during service which caused him knee pain since that time. This evidence, created in connection with treatment that the Veteran was receiving for his knee disabilities, is of significant probative weight in showing symptoms since service. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Moreover, there is no medical opinion in the evidence of record that indicates the current knee disabilities are not related to the in-service injury and continuous symptoms reported by the Veteran. In sum, the evidence reflects that the Veteran experienced left and right knee pain in service and that he has experienced continuous symptoms in the years since that time. The evidence is thus at least evenly balanced as to whether the Veteran's diagnosed left and right knee disabilities began in 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 left and right knee disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Low back strain A February 2015 private physician diagnosed the Veteran with degenerative disc disease and low back strain. Thus, a current disability has been demonstrated. The remaining question is whether the Veteran's service-connected right foot strain status post fracture caused his low back disability. In a February 2014 letter, the Veteran's private physician opined that the Veteran's low back disability is at least as likely as not proximately due to his current service-connected right foot strain status post fracture. The private physician explained that the Veteran's gait is altered when compensating for his right foot strain which leads to misalignment in his sacrum and hips which ultimately affects his lower back. 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). Therefore, the February 2014 private opinion is entitled to substantial probative weight. Moreover, there is no contrary medical opinion in the evidence of record. Given the positive nexus opinion, the Veteran's low back disability is the result of his service-connected right foot strain status post fracture. Accordingly, service connection for low back disability, secondary to service-connected right foot strain status post fracture, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. The Board therefore need not consider direct service connection or any other theory of entitlement. REASONS FOR REMAND Entitlement to service connection for hepatic structures is remanded. The Veteran has not been afforded a VA examination for his claimed hepatic structures. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when: (1) the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability; (2) the record indicates that the disability or symptoms of disability may be associated with active service or a service-connected disability; and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). A conclusory generalized lay statement suggesting a nexus between a current disability and service is not sufficient, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Id. at 1278-1279. In a March 2015 letter, the Veteran's private physician noted that the Veteran had a computed tomography (CT) scan done of his abdomen and pelvis in October 2007 that revealed hepatic structure or lesions. On the November 2016 NOD the Veteran stated that he was prescribed Ibuprofen for his knee pain in service and the continued use of this drug caused him hepatic structures. In April and May 2021, the Veteran submitted medical literature linking Ibuprofen to liver problems. Treatise materials generally are not specific enough to show nexus. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). However, there is evidence of persistent or recurrent symptoms of hepatic structures that may be associated with service or a service connected disability. A VA examination or opinion is warranted on this issue and a remand is warranted. This matter is REMANDED for the following action: Request an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's hepatic structures and related symptoms. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hepatic structures or any related symptoms are due to his military service, had their onset during service, or are otherwise related to service or the now service connected knee and back disabilities, to include being caused by the Ibuprofen prescribed for his knees and back. The clinician should specifically address the medical literature submitted by the Veteran on the relationship between Ibuprofen and liver problems. The clinician should also indicate whether the hepatic structures are at least as likely as not either (a) caused or (b) aggravated by Ibuprofen taken post service for the now service connected knee and back disabilities. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. 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.