Citation Nr: 22016752 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 14-39 237 DATE: March 23, 2022 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a left ankle/foot disability is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in her favor, it is just as likely as not that the Veteran's lumbar spine disability is due to injuries she sustained from a fall during her active military service. 2. Resolving all reasonable doubt in her favor, it is just as likely as not that the Veteran's left knee disability is due to injuries she sustained from a fall during her active military service. 3. Resolving all reasonable doubt in her favor, it is just as likely as not that the Veteran's left ankle/foot disability is due to injuries she sustained from a fall during her active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for establishing entitlement to service connection for a left ankle/foot disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from July 1981 to December 1981. She had additional Reserve service from May 1981 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, July 2020, June 2021, and January 2022, the Board remanded the issues on appeal for additional development. The issues have returned to the Board for further appellate consideration. SERVICE CONNECTION Generally, to establish service connection, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether the evidence weighs persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a lumbar spine disability is granted. See discussion in paragraph 3 2. Entitlement to service connection for a left knee disability is granted. See discussion in paragraph 3 3. Entitlement to service connection for a left ankle/foot disability is granted. In this case, the Veteran seeks entitlement to service connection for disabilities of the lumbar spine, left knee, and left ankle/foot. She asserts that these disabilities are due to a fall down a flight of stairs in 1981 during her period of active service. As noted by the Board in the June 2021 remand, the fall is documented in the Veteran's service treatment records for her period of active duty service. See September 1981 service treatment record. After a review of the evidence of record, the Board finds that service connection for each disability is warranted. Initially, the Board notes that the Veteran's service treatment records do not reflect that the Veteran had any problems related to the back, left knee, or left ankle/foot upon entry into active service. The Veteran has current diagnoses of lumbar strain, left knee osteoarthritis, and osteophyte formation of the left ankle and possible adjacent small loose body. See September 2013 and January 2021 VA examination reports. Thus, the first element of service connection is met for each claimed disability. Thus, the only remaining requirement is to also have probative evidence of the required correlation ("nexus") between the diagnosed disabilities of the lumbar spine, left knee, and left ankle/foot and the Veteran's fall down the stairs during active service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). During a January 2021 VA examination, the Veteran reported that her lumbar spine, left knee, and left ankle/foot conditions began in 1981when she fell down a flight of stairs during her period of active service. As previously noted, the Veteran's service treatment records document her fall down the stairs in September 1981. As noted in the June 2021 Board remand, the Veteran has stated that she has experienced pain related to her back, left knee, and left ankle/foot off and on since separation from service. The Board notes that the record does not include a positive nexus opinion. However, the Board notes that in the previous remands, all of the prior VA opinions of record were deemed inadequate. The Board notes that following the most recent January 2022 remand, VA addendum opinions were obtained in January 2022. As the January 2022 VA examiner noted that he did not have access to all of the Veteran's medical records, the Board also deems these addendum opinions to be inadequate. While the record does not include a positive nexus opinion, the Board finds that the Veteran's statements regarding the onset of her symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Furthermore, the record reflects that the Veteran's disabilities of the lumbar spine, left knee, and left ankle/foot did not exist prior to service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the Board finds a relationship between the Veteran's current lumbar spine, left knee, and left ankle/foot conditions with the back, left knee, and left ankle/foot pain she experienced in service, in turn meaning she has established her entitlement to service connection. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Thus, in light of the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for disabilities of the lumbar spine, left knee, and left ankle/foot is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.