Citation Nr: 21040478 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-04 096 DATE: July 3, 2021 ORDER Entitlement to service connection for a left knee disability, including degenerative joint disease is granted. The discontinuance being improper, a total disability rating based on individual unemployability (TDIU) is restored, and the appeal is granted. The discontinuance of eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 (DEA benefits) being improper, the benefit is restored, and the appeal is granted. REMANDED Entitlement to service connection for a low back disability, to include lumbar degenerative disc disease with underlying arthritis and associated left side radiculopathy is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's current left knee disability began in service. 2. The Veteran remains unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 3. The discontinuance of eligibility to DEA benefits was improper. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, including degenerative joint disease have been met. 2. The discontinuance of a TDIU was improper. 38 U.S.C. § 5112 (2018); 38 C.F.R. § 3.105, 3.343 (2020). 3. The discontinuance of DEA benefits was improper. 38 U.S.C. § 5112 (2018); 38 C.F.R. § 3.105 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 0027 to June 2007 and from September 2010 to October 2011, with additional service in the Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal of February 2014 and December 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing on February 4, 2021. However, in a January 25, 2021 letter, the Veteran withdrew his request for a hearing. In that same letter, the Veteran's attorney requested an additional 90 days to submit evidence. The attorney submitted additional evidence in April and May of 2021, and waived AOJ review of the evidence. 1. Entitlement to service connection for a left knee disability, including degenerative joint disease, is granted. 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(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). "Active duty for training" is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes, or full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Reserves include the National Guard. 38 U.S.C. § 101(26), (27). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran claims that his current left knee disability is related to his service in Iraq from 2010 to 2011. Specifically, he claims that he began to experience chronic left knee pain after driving for 8 to 14 hours straight during missions. He described the driver's seat as "very cramped, especially with the body armor and Kevlar," and that "there was virtually no room for any movement." The Veteran stated that he complained to his truck commander many times, but nothing was done. When he returned from his deployment, he filled out a line of duty form. Following his discharge from active duty, he was unable to return to work due to the pain. See, e.g., June 2013 lay statement. Service treatment records (STRs) reflect that the Veteran denied knee pain at a November 2006 National Guard examination and a January 2007 active duty enlistment examination. A September 2011 post-deployment health assessment noted that the Veteran reported left knee pain as a health concern. A STR of the same month noted that the Veteran complained of left knee pain since February 2011. His pain was worse with driving and prolonged standing. The examiner assessed patellofemoral syndrome and provided instructions on rehabilitation exercises. A September 2011 Statement of Medical Examination and Duty Status indicated that a left knee injury was incurred during active duty and was likely to result in a claim against the government for future medical care. Service personnel records indicate that the Veteran was recommended for an award for serving as a driver on a CAT-2 Mine Resistant Ambush Protected combat vehicle for 50 plus missions while deployed to Iraq from September 2010 to August 2011. Post-service, a November 2011 treatment record noted that the Veteran presented with left knee pain and swelling. The examiner noted that the Veteran had some minor knee discomfort from sitting in a truck for prolonged periods of time while deployed to Iraq. He was evaluated at Fort Lewis, but no x-rays were performed. His knee seemed to have done well until recently when he was out rolling tarpaper on a roof (October 22). He began having swelling to the left knee that extended clear down to his ankle. Ecchymosis and patellar tenderness was noted. The examiner recommended an MRI scan. An April 2012 treatment record noted that the Veteran was "doing about the same as the last time he was seen." The examiner noted that diagnostic studies had still not been performed. A May 2012 National Guard treatment record noted that the Veteran presented with left knee pain that began in February 2011 while driving in Iraq. He stated that when he returned to Fort Lewis in September 2011, he was questioned regarding his injury without being examined. After three to four months of being home, the pain returned, and the Veteran sought medical attention. The Veteran had been unable to return to work per his doctor's orders. In July 2012, the Veteran was placed on a temporary physical profile with the Army National Guard, in part due to "left knee injury/strain." A January 2014 x-ray study of the left knee indicated fragmentation of the tibial tuberosity, compatible with prior Osgood-Schlatter disease. There was also some dorsal spurring of the patella. At a January 2014 VA knee examination, the examiner noted a diagnosis of left knee degenerative joint disease. The examiner noted that symptoms began in March 2008, citing a sick slip from Fort Knox for complaint of knee pain for which the Veteran was given light/limited duty. The examiner also noted the Statement of Medical Examination and Duty Status regarding injury resulting in pain in the left knee. The examiner stated that "there is no radiographic or clinical evidence for pathology in the left knee that indicates prior trauma or residuals of an injury specific to the left knee." However, the examiner did not render an etiology opinion, noting that no opinion was requested. In February 2014, a VA examiner reviewed the claims file and provided an etiological opinion. The examiner noted that "it is noted in the subjective history from [the January 2014 VA examination] that the [V]eteran reported onset of his knee pain was gradual beginning March 4, 2008 . . . Review of the medical records does not support this statement." The examiner noted that the Veteran was seen for complaint of left knee pain and swelling in March 2012, which was determined to be from compression of the patella. The examiner further noted that, while the Veteran sought treatment for intermittent knee pain following his discharge, "no significant clinical evidence was found, and no diagnosis was given." Further, the examiner found that the x-rays were consistent with degenerative joint disease more likely related to normal wear and tear. The examiner then opined that the Veteran "less likely than not had a chronic left hand or right knee disability that is clinically linked to any condition for which he received treatment" during service. In March 2015, the Veteran submitted a private opinion from an orthopedic physician. The examiner stated that the opinion was "based only on a file review and 47 pages of medical records." The examiner noted that there was a lack of evidence since the complaint of left knee pain in service and treatment in January 2014. However, the examiner opined that the Veteran developed chronic pain in the left knee as a result of sitting in a cab during his deployments in cramped conditions. Following an August 2015 VA examination, the examiner opined that the Veteran's left knee degenerative joint disease (DJD) was not incurred in or caused by left knee pain during service. The examiner reasoned that the Veteran's current DJD of the left knee is most likely caused by or a result of the process of aging and the Veteran's years of involvement in a the physically demanding occupational and recreational activities he was engaged in for the majority of his adult life, before and after his periods of service, because there was no evidence of arthritis until three years after separation of military service. Based on the foregoing, the Board finds that service connection for a left knee disability is warranted. Service treatment records confirm that the Veteran experienced chronic knee pain in service. Although the Veteran only reported knee pain in September 2011, he reported ongoing knee pain during his deployment to Iraq since February 2011. The Board finds that the Veteran's account of experiencing left knee pain during combat service is consistent with the circumstances, conditions, and hardships of that service. 38 U.S.C. § 1154 (b). Moreover, the evidence reflects chronic knee pain since service. As noted above, the Veteran experienced a recurrence of knee pain in October 2011, just two days after he was discharged from active duty. He continued to complain and was placed on a temporary profile in July 2012. Although an x-ray or MRI was clinically indicated in November 2011, the Veteran was not afforded diagnostic testing until January 2014. Thus, it is possible that the Veteran had arthritis prior to the date of the x-ray. The Board acknowledges the conflicting medical nexus opinions of record. However, the negative nexus opinions tend to support the Veteran's claim that his current left knee disability is not due to trauma, but rather wear and tear. Moreover, the August 2015 examiner attributes the knee disability to his occupational duties pre- and post-service, but there is no evidence of a preexisting knee disability, and the record reflects that the Veteran experienced difficulties in returning to work after his second period of active duty. Consequently, the negative opinions are afforded lesser probative value. In light of the foregoing, the Board finds the evidence is at least in equipoise as to whether the Veteran's current left knee disability began in service. Resolving reasonable doubt in his favor, service connection for a left knee disability is granted. 2. The discontinuance being improper, a TDIU is restored, and the appeal is granted. 3. The discontinuance of eligibility to DEA benefits being improper, the benefit is restored, and the appeal is granted. In a September 2018 letter, VA informed the Veteran that it had received information from the Social Security Administration (SSA) that indicated he earned wages above the poverty threshold for calendar year 2017 and proposed to discontinue his TDIU and DEA benefits. In a December 2018 rating decision, the RO discontinued TDIU and DEA benefits effective January 1, 2019. The Veteran appealed and maintains that he did not work in 2017 and that he remains unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Under the laws administered by VA, in reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of 38 C.F.R. § 3.105 (e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343 (c)(1) (2019). VA must abide by specific procedural protections that apply when a veteran's rating is reduced. 38 C.F.R. § 3.105 (e). The RO sent the Veteran a notice letter in September 2018, which satisfied the special procedural requirements outlined in 38 C.F.R. § 3.105 (e). Initially, the Board notes that the claims file does not include information from the SSA regarding the Veteran's wages; however, the Veteran provided his 2019 and 2020 tax returns, which includes his W-2s for those years. The Veteran received $32,364.96 in wages both years. As noted by the Veteran's attorney, the Veteran's W-2 indicates that it was issued by Unum Life Insurance Company of America (Unum) and that the income was third-party sick pay, i.e., disability benefits paid by an insurance company. Of record is a Certificate of Coverage issued by Unum, which indicates that the Veteran is entitled to 60 percent of his former income for disability purposes. Thus, the evidence indicates that the Veteran's earnings were actually long-term disability benefits from Unum and not earnings from an employer. The Board further notes that there is nothing in the claims file suggesting that the Veteran is otherwise able to secure and follow a substantially gainful occupation or that there have been any changes in his service-connected disabilities. Therefore, the Board finds that the discontinuance of TDIU, as well as the ancillary award of DEA, was improper and that restoration is warranted effective January 1, 2019. REASONS FOR REMAND Entitlement to service connection for a low back disability, to include lumbar degenerative disc disease with underlying arthritis and associated left side radiculopathy, is remanded. The Veteran claims that his current low back disability is related to his service in Iraq. The RO appears to have determined that the Veteran's low back disability preexisted service, based on a July 2010 treatment record noting intermittent back problems for approximately 10 years. The Veteran reported that he usually had an incident once a year which initiated back pain with intermittent radiculopathy on the left side. An x-ray at that time showed arthritic changes at the L5-S1 disk space. Because the back disability was not "noted" at entrance into active service, the legal standard required is clear and unmistakable evidence that the back disability both preexisted service and was not aggravated by service. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In a February 2014 opinion, the examiner answered "Yes" to the question, "Does the evidence indicate that the Veteran had chronic thoracolumbar disabilities before he entered active duty on September 17, 2010?" The examiner also answered "No" to the question, "Does the evidence indicate that he sustained an injury during active duty service that aggravated the apparently pre-existing thoracolumbar disability beyond normal progression?" In an August 2015 opinion, the examiner opined "the Veteran's [low back disability] (which clearly and unmistakably existed prior to service) was not aggravated beyond its natural progression by the back pain during service." Here, neither opinion employs the stricter evidentiary standard of clear and unmistakable evidence in answering both questions of pre-existing disability and aggravation. As such, the Board finds that an addendum VA opinion is necessary. The matter is remanded for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue(s) on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's claimed low back disability. After a review of the claims file, the examiner should answer the following questions: a) Did the Veteran's low back disability clearly and unmistakably (i.e., obviously) exist prior to entrance into active duty? b) If so, was the Veteran's preexisting low back disability clearly and unmistakably (i.e., obviously) not aggravated during active service? c) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability began in service or is otherwise etiologically related to service? In rendering the opinions requested in paragraphs 1a) and 1b), the examiner should use the explicit standard clearly and unmistakably to determine whether the low back disability preexisted service and was not aggravated by service. If additional examination is deemed necessary, then one should be conducted. A rationale should be given for all opinions rendered. 4. After completing the requested action, and any additional development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.