Citation Nr: 21040287 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 10-47 891 DATE: July 3, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active service from January 1980 to April 1980 and from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In January 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO), and a transcript has been associated with the claims file. In a November 2015 decision, the Board found that new and material evidence had not been submitted to reopen the Veteran's claim for entitlement to service connection for a low back disability. In a June 2018 decision, the Board again denied a request to reopen the previously denied claim for entitlement to service connection for a low back disability finding new and material evidence had not been submitted. The Veteran appealed that decision in April 2019 and the parties submitted a Joint Motion for Remand (JMPR), requesting that Board's decision be vacated and remanded. The Court of Appeals for Veterans Claims (Court) granted the motion in May 2019 and the case was returned to the Board for further adjudication. In September 2019, the Board remanded the Veteran's claims for entitlement to service connection for a low back disability and a left knee disability for further development. The Board noted that the JMPR indicates that the Board erred in not obtaining certain specified records. The Board also noted that the claim of entitlement to service connection for "arthritis" and "joint pain" involves specific reports of left knee disability. The Board further noted that entitlement to service connection for a left knee disability was previously denied in a May 1988 rating decision and that the Veteran did not appeal this denial. Therefore, noting that new and material evidence is required to reopen that claim, the Board directed that the Veteran be sent notice that complies with the requirements of the Veterans Claims Assistance Act (VCAA) in connection with his left knee disability claim. This matter was again before the Board in March 2021 at which time the Board found that there had been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also found that new and material evidence had been received and granted the applications to reopen the previously-denied claims of entitlement to service connection for a low back disability and a left knee disability. The Board remanded the claim of entitlement to service connection for a low back disability for a medical opinion. The Board remanded the claim of entitlement to service connection for a left knee disability for a VA examination to determine the nature and etiology of any diagnosed left knee disability. 1. Entitlement to service connection for a low back disability The Veteran contends that his low back disability is related to service, including physical training, training while carrying an 80-pound rucksack, and parachute jumping. The Board notes that the Veteran received the Parachute Badge and the circumstances of his service are verified. A VA examination in April 1988 notes recurrent low back strain, mild, and that the Veteran reported low back pain. In the May 1988 rating decision, the RO conceded a diagnosis of low back strain. VA treatment records dated February 2019 document a diagnosis of significant lumbar osteoarthritis. As there is a current diagnosis and in-service incurrence, the first two elements required for service connection are met and the crux of the Veteran's appeal is whether there is a nexus between his current diagnosis and his active service. The Board will review the evidence that is relevant to such determination. Service treatment records show treatment of the Veteran for cervical strain in June 1981 following a fall "directly on head while carrying rucksack." At a VA examination in March 1988, the Veteran reported recurrent low back pain. The Veteran submitted a statement in April 2000 that during service, he fell with an 80-pound rucksack on his back and that his back has been hurting ever since. Medical records dated June 2009 during the Veteran's incarceration at a correctional facility show complaints of back pain. In a statement submitted in July 2009, the Veteran noted low back pain. In August 2009, the Veteran submitted a statement that his low back strain was caused by the training he went through in the military. In December 2012, the Veteran submitted a statement that his back injury still "pains" him and he is in constant pain. At the Veteran's hearing before a Decision Review Officer in January 2014, the Veteran testified as to his paratrooper training and that he experienced back pain due to wearing the parachute and rucksack, both while waiting in a hunched over position on the plane prior to jumps and following the jumps. He stated that he was tightly strapped into a parachute with a rucksack and waited on the plane, hunched over, until it was time to jump. He also stated that he fell during service with a rucksack on his back. He stated that he had back pain in his lower back during service. He stated that he continues to have back pain. The Veteran's MOS was Infantryman and he received the Parachute Badge. The Board finds the Veteran to be competent to relate statements concerning back pain he experienced during service and that these statements are credible. At a February 2014 VA examination, the Veteran reported low back pain related to parachute jumping during service. He stated he has chronic pain that he thinks is due to carrying heavy loads in service. He reported flareups causing him to "just lay there." The examiner noted there was no pathology on examination to render a diagnosis and therefore no medical opinion was offered. In a February 2017 statement the Veteran noted that he ran miles with a heavy rucksack and also wore a heavy parachute. He stated that it is hard to work while being in constant pain. He submitted an October 2016 lumbar spine MRI report. Pursuant to the Board's March 2021 remand, a VA medical opinion pertaining to the Veteran's low back disability was obtained in April 2021. The examiner noted the Veteran's statements regarding the wear and tear on his back from parachuting and general military training and duties, and addressed the likelihood that such were related to his current low back osteoarthritis. The examiner stated that the Veteran's degenerative spine disease would not be rated as severe and that degenerative joint disease and degenerative disc disease were documented by an October 2016 MRI. The examiner noted there is no evidence of a back condition arising in service, including as related to parachute landings. The examiner stated that "Hard landings are conceded and the VA grants wide latitude with respect to injuries of the lower extremities and lumbar spine as to service connection. However, any condition caused by hard landings parachuting would have been readily apparent at the time of the event or proximate to it." The examiner noted that the Veteran's separation exam is negative for back conditions. He stated that "These exams are notably thorough and include history and physical. It is unlikely a significant lumbar condition would have gone unnoted or unreported." The examiner noted that the first evidence of a back condition is the VA examination in March 1988, at which time no diagnosis was made. The examiner noted that degenerative spine disease is considered a naturally occurring process due to normal wear and tear with natural disc desiccation associated with aging and such was age-appropriate at the time of the veteran's diagnosis (Wheeless' Text). The examiner opined that there is no evidence of a traumatic spine injury on imaging, which he stated further eliminated remote jumps in the early '80s as a nexus for the development of degenerative spine disease. Therefore, the examiner opined that it is less likely than not that the Veteran's degenerative spine disease had its nexus in active service, including jumps associated with the parachute badge. "Though hard landings may be conceded, there is no evidence of an injury occurring that would predispose the veteran to the development of degenerative spine disease > 30 years later." The examiner stated that despite claims of onset during service with chronicity since service, the medical record did not support the claim. The Board finds that the March 2021 examination and opinion are inadequate as the examiner failed to adequately address the circumstances of the Veteran's service, and lay statements including the Veteran's complaints of back pain during service. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner conceded that the Veteran's parachute jumps involved "hard landings" and acknowledged that VA regulations and law provide the benefit of the doubt to the Veteran. 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran asserts that he has a low back disability due to trauma from performing parachute jumps in service, and from carrying heavy rucksacks during training. Although the Veteran's service treatment records do not reflect treatment for a back disorder in service, these records do reflect treatment following a fall while carrying an 80-pound rucksack on his back while training. Also, the Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, reflects that earned the Parachute Badge. As such, the Veteran's assertions as to in-service trauma to his lower back from parachute jumps is consistent with the circumstances of the Veteran's service. As such, the Board finds that the Veteran is competent to report trauma to his low back causing pain during service, and that he is credible in his assertions. In addition, the examiner's opinion lacks a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner's statement that "[a]ny condition caused by hard landings parachuting would have been readily apparent at the time of the event or proximate to it" ignores the Veteran's assertions of back pain that began during service. The examiner noted that the Veteran's separation examination is negative for back conditions. The examiner's opinion that it is "unlikely a significant lumbar condition would have gone unnoted or unreported" is conclusory and relies only on his opinion that separation exams are "notably thorough" without specifically addressing the Veteran's separation examination. In any event, the Board notes that diagnosis and treatment during service are not required to establish service connection. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Further, service connection may be established by a finding of continuity of symptomatology after service. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Due to the inadequacy of the April 2021 opinion, the Board finds a remand is necessary for a new opinion taking into account all of the evidence of record, including the Veteran's lay statements and the circumstances of his service, including parachute jumps and his documented fall during service while carrying a rucksack on his back. The Board notes that the Veteran is service connected for left hip osteoarthritis which was diagnosed post service based on an examiner's opinion that the Veteran's left hip osteoarthritis is as likely as not related to multiple falls sustained as a paratrooper during military service, and to the Veteran's service-connected fracture of his left fibula. These same circumstances should be considered in connection with the Veteran's low back disability. 2. Entitlement to service connection for a left knee disability The Veteran contends that his left knee disability is related to service, or alternatively, that his left knee disability is related to his service-connected disabilities, including his left hip disability and left ankle disability. Service treatment records indicate treatment for injuries to his left knee including a sprained left knee in October 1981. Discoloration, edema, and joint tenderness were noted. A VA examination in March 1988 noted that the Veteran reported trouble walking due to a left knee sprain during service. He reported that on some days, he could not make it to work due to pain in his left knee. At an April 1990 VA examination the Veteran reported pain in his left knee and that his knee had been giving him problems for the past few years and one day he fell and it swelled up "like a softball." He also reported stiffness in his left knee joint. The Veteran submitted a statement in December 2009 that during service he did a lot of walking, running, and jumping from airplanes and helicopters, causing "tremendous" wear and tear and strain on his legs and feet. He stated that "when his knee disability flares up, he can barely bend his knee and that it is very painful." In December 2012, the Veteran submitted a statement that he experiences joint pain secondary to his service-connected left fibula fracture, including in his knees. During the Veteran's hearing in January 2014 before the Decision Review Officer, the Veteran stated that he has joint pain, including in his knee and that pain makes it difficult for him to work, walk, drive and sleep. A VA pain assessment in June 2015 noted that the Veteran reported pain in his left knee and hip. He stated that he believes his knee pain started after he injured his ankle. It was noted that he fractured his fibula during service. Pain was noted as 5 on a scale of 1-10. His left knee was noted as hypersensitive to minimal palpation on medical/lateral joint lines. Pain was noted on both sides of the joint. In the March 2021 decision, the Board remanded the Veteran's claim for service connection for a left knee disability. The Board found that VA treatment records show left knee pain with potential functional loss (though with full range of motion) potentially related to the Veteran's left hip and left ankle. The Board noted that these VA treatment records show that the Veteran experiences pain from hip to foot. The Board found that this evidence raised a new theory of entitlement, secondary service connection, and also raised doubt as to whether or not the Veteran has a currently diagnosed left knee disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board remanded to afford the Veteran a VA examination to determine the etiology of any diagnosed left knee disability. Pursuant to the Board's remand in March 2021, the Veteran was afforded a VA examination in April 2021. The examiner noted that the Veteran was diagnosed with knee strain in 1980 during service. He reported current symptoms of left knee pain, rated 1 or 2 on a scale of 1 to 10. The Veteran reported that his left knee feels better after his left hip surgery. The Veteran stated that he cannot stand, do yard work, or walk long distances without pain. He reported difficulty in climbing and kneeling. The examiner noted pain, weakness, and lack of endurance. The Veteran denied flareups. Muscle atrophy and ankylosis were not noted. As to direct service connection, the examiner found the Veteran's knee disability is less likely than not incurred in or caused by service. The examiner stated that the left knee disability was acute only during service. He found there is no evidence of chronicity of care and the Veteran's symptoms are subjective only. Therefore, he opined a nexus was not established. As to secondary service connection, the examiner opined that there is no clear evidence from review of orthopedic literature (Wheeless' Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner found that this level of severity is not supported based on record review, history or exam. The examiner noted that it is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. Therefore, the examiner opined that the Veteran's left knee disability is less likely than not related to the left ankle disability. (Oxford's Textbook on Orthopedics and Trauma). Using the same rationale, the examiner opined that the Veteran's left knee disability is less likely than not related to his service connected left hip disability. The examiner continued that the Veteran mentioned he had left hip surgery in 2020 and it helped with the pain in the left knee. The Veteran also stated he is not sure now what was causing left knee pain. The examiner opined that the Veteran's left knee disability is less likely than not aggravated beyond its natural progression by the service-connected left ankle disability or left hip disability. The Board finds that the examiner's opinion is inadequate as it is conclusory and lacks a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner does not adequately address the Veteran's complaints of left knee pain especially in light of documented injury during service. Here, the Veteran asserts that he has a left knee disability due to trauma from performing parachute jumps in service, and from carrying heavy rucksacks during training. The Veteran's service treatment records reflect treatment for a left knee injury in service, the Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty reflects that earned the Parachute Badge. As such, the Veteran's assertions as to in-service trauma to his left knee from parachute jumps is consistent with the circumstances of the Veteran's service. As such, the Board finds that the Veteran is competent to report trauma to his left knee in service, and also finds that he is credible in his assertions. The examiner also did not adequately address the Veteran's complaints of knee pain as related to his service-connected hip and leg disabilities. The examiner cites to textbook language but does not explain how or why the Veteran's left knee disability does not meet the cited level of severity. The Board finds that the examiner's statement that it is "not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it" does not acknowledge that the same circumstances causing one joint injury may also cause other joint injuries. As noted above, in its prior March 2021 decision, the Board found that VA treatment records show left knee pain with possible functional loss potentially related to the Veteran's left hip and left ankle. In addition, the examiner did not address complaints of knee pain and joint pain, specifically knee joint pain. Finally, the examiner did not address the Veteran's knee pain pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Stegall v. West, 11 Vet. App. 268 (1998). In Saunders, the United States Court of Appeals for the Federal Circuit held that a veteran's pain alone, absent a specific diagnosis or otherwise identified disease or injury, can constitute a disability under 38 U.S.C. § 1110, because pain, even in the absence of a presently diagnosed condition, can cause functional impairment. The examiner did not address whether the Veteran experienced undiagnosed pain or whether such pain caused functional impairment. The Board finds that a remand is necessary for another examination and opinion addressing the Veteran's left knee disability to clarify whether the Veteran has a presently diagnosed left knee disability, and if so to address whether such disability is related to service or to the Veteran's service-connected disabilities. A remand is also necessary to obtain a VA examination and opinion consistent with the Federal Circuit's holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The matters are REMANDED for the following action: 1. The AOJ should request the following opinion from a different examiner than the examiner who provided the April 2021 opinion: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability diagnosed as osteoarthritis was caused by or incurred in service. The examiner must specifically address the lay statements pertaining to the Veteran's contentions that wear and tear on his back from parachuting and military training including carrying heavy rucksacks, and his fall during service while carry a heavy rucksack, caused his low back osteoarthritis. 2. The AOJ should schedule an additional examination by an appropriate examiner other than the examiner who provided the April 2021 opinions with respect to the Veteran's claim for service connection for a left knee disorder to determine the nature and etiology of the claimed disability. The examiner should also be requested to provide the following opinions: (a.) Whether the Veteran's has a current left knee disability and if so, (b.) Whether such disability is at least as likely as not (50 percent or greater probability) directly related to service. (c.) Whether such disability is at least as likely as not (50 percent or greater probability) caused by or aggravated by his service-connected disabilities. (d.) If the examiner finds the Veteran does not have a currently diagnosed left knee disability, the examiner should provide the following opinion: Whether the Veteran's pain alone, absent a specific diagnosis or otherwise identified disease or injury, causes functional impairment and if so, whether it is at least as likely as not that such is related to service or was caused or aggravated by service-connected disabilities. The examiner should address the evidence of record pertaining to joint pain. A complete rationale must be provided for any medical opinion rendered. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.