Citation Nr: 22016305 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-43 512 DATE: March 21, 2022 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right knee disability. Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected right knee disability, is remanded. VETERAN'S CONTENTIONS The Veteran contends that he should be granted service connection for his right knee and lumbar spine disabilities. See October 2016 VA 21-526EZ. The Veteran stated that he injured his right knee when a five-ton truck fell on him during service. See November 2021 Board Hearing Trans. pg. 5. The Veteran also reported that his lower back pain began after an in-service football game, where someone ran into his back. Id. at 6. Alternatively, the Veteran asserted that his lower back pain was related to his right knee disability. See August 2018 VA Form 9. FINDINGS OF FACT 1. In a June 2003 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) initially denied a claim of entitlement to service connection for a right knee disability. No new and material evidence was received within a year of the issuance of the June 2003 decision, and it became final. Evidence received since the J rating decision relates to prior unestablished facts. 2. The Veteran's right knee disability, currently manifested by pain, including with weight-bearing, had its clinical onset during service. See November 2021 Board Hearing Trans. pg. 5; see also, June 1981 and December 2015 Service Treatment Records (STRs). CONCLUSIONS OF LAW 1. The June 2003 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1984. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his August 2018 VA Form 9. In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. As a final introductory matter, the Board notes that entitlement to service connection for the Veteran's right knee disability was initially denied by a prior June 2003 rating decision. Since that decision, new and material evidence was received that is sufficient to reopen the claim, including a June 2018 VA medical opinion and November 2021 Board testimony, where the Veteran explained the onset of the functional limitations of his right knee disability since service. See October 2021 Board Hearing Trans. pp. 3-4. As such, the claim is reopened, and the merits of the claim are addressed below. Entitlement to service connection for the Veteran's right knee disability is granted. 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). After reviewing the evidence of record, the Board finds that service connection for the Veteran's right knee disability is warranted in the instant case. Turning to the evidence of record, the Board finds that the June 2018 VA examiner confirmed the Veteran's diagnosis of a right knee meniscal tear and right knee osteoarthritis. See June 2018 VA Medical Opinion. Next, the Board finds that the evidence of record demonstrates an in-service incurrence of his right knee disability. Specifically, the Veteran has repeatedly stated that he injured his right knee during service, when his right knee was pinned by a five-ton truck. See November 2021 Board Hearing Trans. pg. 3; see also, June 1981 STR and June 2018 VA Medical Opinion. As a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing right knee pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of pain in service, and continuous symptoms of right knee pain since his service to be credible in the instant case. Lastly, regarding a link between the Veteran's right knee disability and service, the Board finds that, as reported by the Veteran, his right knee pain began in service and has continued to the present. See November 2021 Board Hearing Trans. pg. 4. The Veteran stated that his right knee pain began during service and the pain worsened after service. See January 1987 Statement in Support of Claim, May 2016 Government Medical Record, and March 2017 VA Form 9. At his Board hearing, he denied experiencing further injury of his right knee following his separation from service. Additionally, as stated above, the Veteran is competent to identify his continuous right knee pain since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465. In addition to the Veteran's statements, there is negative opinion evidence against the claim. The Board, however, affords the June 2018 VA opinion little probative weight because the examiner failed to address the Veteran's contentions regarding continuity of symptomatology. The June 2018 VA examiner opined that it was less likely than not that the Veteran's current right knee condition was due to his time in service. In support of this determination, the examiner noted that there was a lengthy time span from Veteran's time in the military to his complaints of his right knee pain worsening, and subsequent medial meniscus tear diagnosis. However, the June 2018 VA examiner failed to address the Veteran's contention that his right knee pain persisted since service. See November 2021 Board Hearing Trans. pg. 4. The Veteran stated that after service, he experienced right knee pain but did not have health insurance that would allow him to seek treatment. See March 2017 Notice of Disagreement. Additionally, the examiner did not address the October 2018 MRI, which showed a medial meniscal re-tear or residual tear in this patient with prior history of medial meniscectomy and whether this provided evidence of a pre-existing right knee injury. As the examiner failed to adequately consider the Veteran's reports of continuity of symptomatology and October 2018 MRI findings, the Board affords little probative weight to the June 2018 VA. Based on the Veteran's lay testimony and the evidence of record, the Board finds each of element of service connection is met. Accordingly, service connection for a right knee disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND Entitlement to service connection for the Veteran's lumbar spine disability is remanded. Although the Board regrets further delay, the Board finds that this claim must be remanded for an addendum opinion. Here, the November 2016 VA examiner opined that it was less likely than not that the Veteran's lumbar osteoarthritis was related to service. See November 2016 VA Medical Opinion. In support of this conclusion, the examiner noted that there were no medical records where the Veteran complained of his lumbar spine symptoms prior to 2016. Further, given that osteoarthritis is an extremely common diagnosis in patients that are the same age as the Veteran, the examiner opined that his lumbar spine disability was not related to service. Although the examiner determined that the Veteran's lumbar spine disability was age-related, he failed to consider the fact that the Veteran was diagnosed with degenerative joint disease of the back when he was 39-years-old, an age at which age-related degenerative changes are not typically seen. See October 2001 Private Medical Record. Additionally, the examiner based his opinion, in part, on the fact that the Veteran did not seek intervention for his back pain until 2016, but the Veteran sought treatment as early as 2001 for his back pain. See August 2001 Private Medical Record. Therefore, the Board finds that the November 2016 VA medical opinion is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds that an addendum opinion is also necessary to comment on whether the Veteran's lumbar spine disability is related to his service-connected right knee disability. See August 2018 VA Form 9. The Board also notes that the Veteran's August 2011 medical records reveal that he reported that the onset of his back pain was related to a workplace accident. See August 2001 Private Medical Record. Therefore, the Board requires clarification regarding whether his current lumbar spine disability was aggravated by the 2001 workplace incident or whether his in-service lower back pain made him pre-disposed to injuries. Based on the foregoing deficiencies, an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his lumbar spine disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. The RO should send the claims file to an appropriate VA examiner who has not previously participated in this case for an addendum opinion as to whether the Veteran's lumbar spine disability is related to service. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (a.) For each diagnosed condition, the examiner(s) should state whether it at least as likely as not that the condition (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. In providing a response to the foregoing, please review the Veteran's September 1981 STR, which shows that he was treated for back pain. Please keep in mind that the phrase "at least as likely as not" means that "the favorable and unfavorable evidence is in approximate balance or is nearly equal. (b.) In further providing a response to Part (3), please consider the Veteran's age at the time of his initial diagnosis of degenerative joint disease (DJD) of the back was 39 (and thus opine as to whether his diagnosis at age 39 suggests that his DJD was related to prior injury or age alone). (c.) Please review the Veteran's August 2001 private medical record and determine whether the Veteran's workplace accident aggravated a pre-existing back injury. (d.) If you determine that a previously existing back disability was not aggravated by the workplace injury, please offer an opinion as to whether it is at least as likely as not that the Veteran's reported in-service injury rendered him more likely, or predisposed him to sustain an injury of a more severe nature, with residuals of a more serious degree. (e.) Please state whether it is at least as likely as not the Veteran's lumbar spine disability was caused by the service-connected right knee disability. (f.) If you determine that the Veteran's right knee disability did not cause his lumbar spine disability, please state whether it is at least as likely as not that the Veteran's lumbar spine disability was aggravated by his service-connected right knee disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.