Citation Nr: 22016567 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-53 276 DATE: March 22, 2022 ORDER The claim of entitlement to service connection for a right knee condition is granted. The claim of entitlement to service connection for a left knee condition is granted. REMANDED The claim of entitlement to service connection for a left elbow condition is remanded. The claim of entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. The Veteran has experienced pain and instability related to his right knee disability since his separation from service. 2. The Veteran has experienced pain and instability related to his left knee disability since his separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Navy from June 1985 to June 1990, with an additional period of reserve service. These matters come before the Board of Veterans' Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2021. A written transcript of that hearing has been prepared and is associated with the evidence of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit-of-the-doubt rule applies if the competing evidence is "nearly equal" or in "approximate balance." The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 1. The claim of entitlement to service connection for a right knee condition. See section 2, below. 2. The claim of entitlement to service connection for a left knee condition. The Veteran contends that his right and left knee conditions are etiologically related to his active duty service. As the evidence and analysis regarding both claims is largely similar, the Board will address them together. The Veteran has current diagnoses of arthritis causing chronic pain in his knees as evidenced by a June 2012 VA treatment record. August 2016 x-rays taken only of the Veteran's right knee also document degenerative arthritis. As such, the first element of service connection is met. Next, service treatment records (STRs) show that the Veteran sought treatment for right knee pain on multiple occasions during his active service. In August 1988, the Veteran complained of having right knee pain for three days that first occurred while running. Initial physical examination revealed decreased range of motion, pain on flexion and extension, and pain on the lateral ligament with tightness on the lateral right knee. He was assessed with a ligament strain. Treatment recommendations included pain medication, warm soaks, elevation, and to avoid running for four to five days. He was also advised to wear an elastic bandage while walking. A follow up treatment record several days later indicates that the Veteran continued to experience pain in his right knee and was only participating in "remedial" physical training. The Veteran testified competently and credibly to the Board that his bilateral knee pain and symptoms of instability became most noticeable during and after his deployment to Japan, where he engaged in extensive running, including on sand. He described the boots he was issued during this time as providing stiff ankle support but unaccommodating for the twisting motion caused when running on soft terrain. He testified that he wore soft braces on both knees during this time. The Veteran testified that he continued to have bilateral knee pain and a feeling of intermittent hyperextension through the remainder of his active service and in the years following his discharge. He continued to notice these symptoms particularly on soft surfaces, such as beaches. While no treatment records exist from the years immediately following the Veteran's discharge from active service, the Board finds that the Veteran continued to experience the same symptoms during the applicable presumptive period based on his competent and credible testimony and lay statements. See e.g., October 2016 Form 9. The Board acknowledges that the evidence of record contains an August 2016 VA medical opinion concerning the Veteran's right knee and attributing the likely cause of his current disability to post-service occupations as an auto body technician and truck driver. The Board finds this opinion inadequate and unpersuasive as the examiner relied on the mere lack of contemporaneous treatment records to conclude the Veteran did not experience chronic symptoms after service and failed to address the Veteran's own competent report of symptomatology. In sum, the Board finds the most probative evidence weighs in favor of concluding that the Veteran's current chronic bilateral knee conditions were first noted in service with continued symptomatology in the years and decades following active service and that these claims therefore meet the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Accordingly, the Board finds that service connection for bilateral knee conditions, to include arthritis, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because the Board is granting service connection on a presumptive basis, all other service connection theories are rendered moot. REASONS FOR REMAND 1. The claim of entitlement to service connection for a left elbow condition, to include as due to military environmental exposure, is remanded. The Veteran contends that he has a left elbow condition caused by his active service that results in symptoms such as pain and numbness in his elbow and lower arm. The Veteran asserts that his symptoms are related to physical duties (e.g., jarring loose truck tires with a sledgehammer) and/or due to exposure to arsenic during his time operating a sandblaster. See Board hearing transcript; September 2014 Supplemental Claim Application. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). After considering the Veteran's contentions and the evidence of record, the Board finds that the issue on appeal includes both the orthopedic and neurological symptoms the Veteran has described. Although further delay is regrettable, the Board finds that remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, there is evidence that the Veteran has multiple left elbow and lower arm conditions. See May and June 2014 VA treatment records. Further, there is sufficient indication from the Veteran's lay statements that one or more of these conditions may be associated with his active service; however, the Veteran has not received a VA examination and development has not been completed to determine the extent to which the Veteran may have been exposed to agents such as arsenic during his active service. As such, remand is warranted to adequately develop the Veteran's claim and to provide a VA examination. 2. The claim of entitlement to service connection for a low back condition is remanded. The Veteran contends that his current lumbar spine condition is related to his active service. Although further delay is regrettable, remand is warranted in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's hearing testimony and service records show that his active service duties included work as an "explosive vehicle" driver and that he routinely operated heavy equipment for long periods of time. These duties included sitting in inclined positions, which caused his back to absorb impact and shocks from the equipment he drove. Additionally, the Veteran often engaged in repair work, such as physically lifting and removing tires on trucks and large equipment. Further, the medical evidence of record shows that the Veteran has a current back condition, to include lumbosacral strain and arthritis. See August 2016 VA exam. The evidence of record remains unclear, however, as to whether the Veteran's current spine conditions had onset during active service or were caused or aggravated by a subsequent period of active or inactive duty for training. A record created in April 1992 (after his discharge from active duty) indicates that the Veteran had "back problems" from approximately December 1990 to January 1991 after he fell off a crane. This record indicates the Veteran had no current pain or limitation of motion but needed a medical evaluation. A May 1992 Request for Additional Medical Information from the Commanding Officer of the Naval Reserve Personnel Center indicates that the Veteran may have had a "condition bearing on physical fitness for active duty and retention in the Naval or Fleet Reserve" and needed a "discharge report on [his] back injury." It is unclear whether a copy of this report exists as it appears that no efforts were made to obtain the Veteran's reserve service records. In addition to the potentially outstanding service records, the VA clinician who examined the Veteran did not adequately consider lay evidence of record from the Veteran and his spouse and relied on the mere lack of contemporaneous treatment records to provide a negative etiology opinion. On remand, an adequate examination that considers all available evidence of record will be necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel and medical treatment records, to include all documents pertaining to his service in the Naval Reserve. Verify all active duty for training and inactive duty training dates for any such service. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. These efforts should include obtaining any available discharge reports as indicated in the May 1992 Request for Additional Medical Information from the Commanding Officer of the Naval Reserve Personnel Center. 2. Attempt to verify the Veteran's asserted in-service exposure to arsenic and lead. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service military environmental exposure. 3. Ask the Veteran to complete a VA Form 21-4142 to identify any relevant private treatment records, to include physical therapy treatment he received for his back and left elbow conditions. See October 2016 lay statement from spouse that the Veteran received physical therapy in New Cumberland, Pennsylvania for his back pain. Make efforts to obtain any outstanding relevant private treatment records identified by the Veteran. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 4. Obtain updated VA treatment records. 5. After the above is complete, schedule the Veteran for VA examination of his lumbar spine condition and left elbow conditions. The clinicians shall review the complete evidence of record and this remand. For the lumbar spine condition, the examining clinician shall take a full history from the Veteran and then: (a.) Identify all current disabilities pertaining to the Veteran's lumbar spine. Conduct any indicated diagnostic tests to identify the conditions. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) For each identified condition, opine whether it is at least as likely as not related to service, including as due to heavy lifting and/or heavy machinery operation as described by the Veteran in his lay statements and testimony. (c.) If arthritis (or another presumptive condition) is identified, opine whether it is at least as likely as not that the condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must include a complete rationale for all opinions expressed. The examiner shall be notified that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's lay reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation for this. For the left elbow condition, the examining clinician shall: (a.) Identify all current disabilities pertaining to the Veteran's left elbow, to include orthopedic conditions such as arthritis, and to include neurological conditions affecting his left forearm and nerves. Conduct any indicated diagnostic tests to identify the conditions. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) For each identified condition, opine whether it is at least as likely as not related to service, including as due to repetitive sledgehammer use as described by the Veteran in his lay statements and testimony. (c.) If arthritis (or another presumptive condition) is identified, opine whether it is at least as likely as not that the condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (d.) For any identified neurological conditions, is the disability at least as likely as not related to exposure to arsenic and/or lead during active service? The examiner must include a complete rationale for all opinions expressed. The examiner shall be notified that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's lay reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation for this. 6. Following completion of the above, the Agency of Original Jurisdiction (AOJ) should review the record, ensure adequacy of the examination opinions and readjudicate the claims on appeal. If any claim remains denied, the AOJ should issue an appropriate supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.