Citation Nr: 21040827 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-43 137 DATE: July 7, 2021 ORDER Service connection for a lumbar spine disability is granted. Service connection for a right knee disability is granted. REMANDED The issue of entitlement to a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability is shown to have onset due to injury sustained during his period of service. 2. Resolving reasonable doubt in the Veteran's favor, his right knee disability is shown to have onset due to injury sustained during his period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. These matters came to the Board of Veterans' Appeals (Board) on appeal from August 2012 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a March 2017 video conference hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing has been associated with the claims file. In April 2021, the Veteran was afforded the opportunity for a new hearing before the Board but declined an additional hearing. In December 2018, the Board denied the Veteran's claims of entitlement to service connection for a right knee disability and lumbar disability, and entitlement to a rating in excess of 30 percent for service-connected PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Veteran and VA' s Office of General Counsel filed a Joint Motion for Partial Remand (JMPR) requesting that the Court vacate the Board's decision as it pertains to those issues and remand the case for readjudication. Specifically, the parties noted that the Board found that there was no continuity of symptomatology because "the first medical evidence" of lower back or right knee pain was from 30 to 40 years after service. However, the parties explained that the Court has held that "symptoms, not treatment are the essence of any evidence of continuity of symptomatology." See Savage v. Gober, 10 Vet. App. 488, 496 (1997); Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) (explaining that the "regulation requires continuity of symptomatology, not continuity of treatment"). Because the Board's sole basis for finding no continuity of symptomatology was the lack of treatment, which is legal error, the parties agreed that remand was warranted for the Board to discuss whether the Veteran had continuity of symptoms, as opposed to continuity of treatment, to include discussion that addressed the credibility and probative value of any lay evidence of continuity of symptomatology. As to the claim for an increased rating for the service-connected PTSD, because the Veteran asserts that his PTSD has worsened, the parties agreed that remand was warranted to afford the Veteran updated VA examination to address the severity of his service-connected PTSD. In September 2019, the Court granted the JMPR and returned the case to the Board for further development and readjudication in compliance with the directives specified. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The Veteran asserts that he injured his back and right knee as an infantryman while stationed at the Republic of Vietnam. He reported that he was about to do a five-man ambush but slipped and fell into a ditch when running from sniper fire. He injured his back and knee and, as there was no medic, he was stuck in the ditch until morning when he could return to his unit. The Veteran endorsed pain during the incident but "figured... it would eventually go away." The Veteran stated that upon return from his deployment, he sought private treatment in 1968. The Veteran testified that he has continued to have right knee and lumbar spine symptoms, including pain, since service. As an initial matter, the Board notes that post-service treatment records show the Veteran has been diagnosed with various right knee and lumbar spine conditions, including lumbar spine degenerative arthritis with degenerative disc disease and right knee arthritis. Initially, there is no dispute as to the existence of a current right knee or lumbar spine disability, nor is there any real dispute as to in-service incurrence. The outcome of the case, therefore, turns on whether a right knee or lumbar spine disability is related to service. Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Arthritis of the lumbar spine and right knee are chronic diseases for VA purposes. 38 C.F.R. § 3.309(a). Turning to the relevant evidence, service treatments are absent for treatment and diagnoses of low back or right knee pain. However, at the March 2017 Board hearing, the Veteran endorsed pain during service but "figured... it would eventually go away." The Veteran stated that upon return from his deployment, he sought private treatment in 1968 due to continued low back and knee pain. The Veteran testified that he has continued to have right knee and lumbar spine symptoms, including pain, since service. See also March 2012 and July 2012 Correspondence. Furthermore, July 2012 and December 2020 statements from the Veteran's wife of 42 years and December 2020 statements from the Veteran's brother and friend note that upon his return from Vietnam, the Veteran complained of low back and right knee pain and swelling. The Veteran was afforded VA back and knee examinations in July 2012. In rendering a negative nexus opinion, the VA examiner did not address the Veteran's reports of lumbar spine and right knee pain since service. Instead, the VA examiner reasoned that the Veteran's lumbar degenerative disc disease was mainly caused by the effects of aging on the spine and specifically on the intervertebral discs. Although the examiner noted that it could also be associated with an injury to the back, he stated that even in that scenario, the discs have usually become weak because of wear and tear on the spine and that wear and tear could also considered another way of saying the effects of aging and daily life on the spine. The examiner also noted that service treatment records are negative for any complaints or treatment for the lumbar spine. The VA examiner also explained that the Veteran's right knee arthritis is due to aging and wear and tear on a joint and not from repeated use or falls and noted that the service treatment records are negative for any complaints or treatment for the right knee arthritis. The examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." The opinions are, therefore, inadequate and of no probative value. In a medical note dated January 2014, the Veteran's chiropractor described the Veteran's service history in infantry and the incident when the Veteran fell of a tree bridge and into a ditch carrying ammunition and a 60-caliber machine gun while under sniper fire. The Veteran described being forced into a fixed position after the fall until the sniper fire ceased. He spent the night in the jungle before being able to return to base camp. The Veteran reported that because his injury was not considered life-threatening under combat conditions, it went unreported as significant. The Veteran's chiropractor opined that given the chronic nature of his condition, and the advanced stages of joint degeneration over time, it was more likely than not that the Veteran's in-service low back injury is the type of initial compression trauma which could lead to his current lumbar degenerative conditions. In a February 2017 letter, the Veteran's treating physician opined that the Veteran's current lumbar spine disability was more likely than not related to service. She reasoned that the Veteran had no other known lumbar neuromusculoskeletal conditions that maybe have precipitated or followed his service-related injury. The Veteran is competent to report on his observed symptoms and on the circumstances of his injuries during and after service. He has consistently and credibly reported that he has experienced lumbar spine and right knee pain since service and further described the chronic nature of his symptoms. Accordingly, the Board finds that the Veteran's reports of in-service right knee and low back pain due to falling in a ditch when running from sniper fire and right knee and low back symptoms thereafter both competent and credible. The Board has considered the July 2012 VA medical opinion against the claims. However, as the VA examiner did not consider all reported relevant and credible history, his negative opinions are therefore accorded no probative weight. The Board accordingly finds that the evidence of record for and against the claims are at least in relative equipoise. Resolving doubt in favor of the Veteran, the claims of entitlement to service connection for lumbar spine and right knee disabilities are granted. 38 U.S.C. §§ 1110, 5107. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent for service-connected PTSD is remanded. The Veteran currently has a 30 percent rating for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's statements at the March 2017 Board hearing suggest the severity of his PTSD may not be accurately reflected by the evidence currently of record. Considering the parties August 2019 JMPR, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of his service-connected PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following actions: 1. Identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completing the above action and associating any additional records with the claims file, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected PTSD. The entire claims file should be made available to, and be reviewed by, the VA psychologist or psychiatrist. All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail with a full description of the Veteran's PTSD, including the level of social and occupational impairment attributable to the Veteran's PTSD. If the psychologist or psychiatrist is unable to render the requested opinion without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.