Citation Nr: 22053675 Decision Date: 09/21/22 Archive Date: 09/21/22 DOCKET NO. 14-10 786A DATE: September 21, 2022 ORDER Entitlement to an effective date of December 17, 1997, but no earlier, for the grant of service connection for radiculopathy of the right and left lower extremities is granted. Entitlement to special monthly compensation (SMC) based on the need of aid and attendance of another person or being housebound from October 1, 1983, to July 31, 1988, is denied. Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is granted. Entitlement to service connection for a left foot disability is granted. FINDINGS OF FACT 1. On December 17, 1997, VA received the Veteran's informal claim to reopen his previously denied claim for service connection for a bilateral leg disability, and after receipt of a delayed Statement of the Case (SOC) in August 2009, the Veteran continued to pursue his claim for service connection for a bilateral leg disability by submitting new and material evidence. 2. From October 1, 1983 to July 31, 1988, the Veteran did not need regular aid and attendance due to service-connected disabilities and was not housebound. 3. The Veteran Has experienced chronic pain in the cervical spine, bilateral shoulders, right knee, and left foot that has caused functional impairment in earning capacity since being run over by an Army truck in service. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 17, 1997, but no earlier, for the grant of service connection for radiculopathy of the bilateral lower extremities are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400(q), 3.156(b). 2. The criteria for entitlement to SMC based on the Veteran being in need of regular aid and attendance and/or being housebound are not met from October 1, 1983, to July 31, 1988. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. 3. The criteria for entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. 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. 7. The criteria for entitlement to service connection for a left foot disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which, in pertinent part, granted service connection for right and left lower extremities radiculopathy assigned 10 percent ratings, effective October 23, 2014, and denied service connection for disabilities of the cervical spine, right and left shoulders, right knee, and left foot. The AOJ framed the service connection claim for a right shoulder disability as a claim to reopen based on new and material evidence, as this claim had been previously denied in a September 2001 rating decision. Review of the record shows, however, that the Veteran's original claim remained pending as new and material evidence was received within one year of the September 2001 decision. Specifically, the AOJ reviewed the Veteran's claim on a de novo basis under the Veterans Claims Assistance Act in September 2001 and continued to deny service connection for a right shoulder disability finding that there was no evidence of treatment for a chronic right shoulder disability. In August 2002, the Veteran submitted a statement noting that he had suffered from pain in the shoulders since an injury in service in September 1980. See August 6, 2002, correspondence. The Veteran's statement is considered new and material evidence as it was not previously submitted, and it relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). Therefore, the Veteran's original claim remained pending and the threshold issue of whether new and material evidence has been received to reopen the service connection claim for the right shoulder disability need not be addressed. The AOJ also framed the service connection claim for a cervical spine disability as a claim to reopen based on new and material evidence, as this claim had been previously denied in a June 1990 rating decision. Review of the record shows, however, that hospital records from Walter Reed Medical Center during the Veteran's military service in November 1980 were added to the record in May 2020. The November 1980 record notes that the Veteran had complaints of neck pain related to an injury in September 1980. Under 38 C.F.R. § 3.156(c), any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section (which addresses new and material evidence, as noted above). As relevant service treatment records were added to the file after the June 1990 rating decision that denied service connection for a cervical spine disability, the Veteran's original claim remained pending, and the threshold issue of whether new and material evidence was received does not need to be addressed. As for the claim for entitlement to SMC from October 1, 1983, to July 31, 1988, in September 2017 the Board granted a 70 percent disability rating for the Veteran's service-connected acquired psychiatric disability from July 30, 1981, to July 31, 1988. A rating of 100 percent was granted beginning on August 1, 1988. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2019 Memorandum Decision, the Court vacated and remanded the Board's decision denying a disability rating greater than 70 percent from July 30, 1981, to July 31, 1988. The Board decision to grant a 100 percent rating beginning August 1, 1988, was not disturbed. The Court essentially instructed the Board to provide a discussion of whether a staged rating of 100 percent is warranted from July 1981 to September 1983 and to address the reasonably raised issue of entitlement to special monthly compensation for the period from July 1981 to July 1988. In December 2019, the Board granted a 100 percent rating for the Veteran's service-connected psychiatric disability, effective July 30, 1981, to September 30, 1983 and denied a rating higher than 70 percent, effective October 1, 1983, to July 31, 1988. The Board remanded the claim for entitlement to SMC between July 30, 1981, to July 31, 1988 for the AOJ to provide a notice of the criteria for substantiating the claim and perform any other development necessary before readjudicating the claim. On remand, the AOJ granted entitlement to SMC based on the need of aid and attendance of another person from July 30, 1981, to September 30, 1983, finding that this was considered a partial grant, as the Veteran was asserting entitlement to SMC through July 31, 1988. As such, the remaining issue on appeal is whether the Veteran is entitled to SMC from October 1, 1983, to July 31, 1988, as noted on the first page of this decision. The Veteran had testified before a Veterans Law Judge (VLJ) in November 2016 regarding the issue of entitlement to an earlier effective date for his psychiatric disability. However, the VLJ who presided over the hearing is no longer employed at the Board. In an October 2019 letter, the Veteran was provided with the opportunity to request a new hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran responded that he did not wish to appear at another Board hearing. In March 2022, the Veteran testified at a virtual Board hearing before the undersigned VLJ. Copies of the transcripts of both hearings have been associated with the Veteran's electronic claims folder. Of note, the Veteran also testified before another VLJ at an October 2007 Board hearing regarding the issue of entitlement to SMC. However, that issue has since been resolved as the Veteran has a 100 percent rating for his psychiatric disability effective August 1, 1988, which includes the entire appeals period for the Veteran's claim that was addressed in the October 2007 Board hearing, i.e., since January 24, 1989. The Board will proceed without a panel decision in this case since the undersigned is the only current VLJ who has held a hearing with the Veteran regarding the issues on appeal. See Arneson, supra. 1. Entitlement to an effective date earlier than October 23, 2014, for the grant of service connection for radiculopathy of the right and left lower extremity The Veteran was assigned an effective date of October 23, 2014, for the grant of service connection for radiculopathy of the bilateral lower extremities, based on the date that he filed a formal VA 21-526EZ, Full Developed Claim, for bilateral leg pains. See May 2015 rating decision. Review of the record shows, however, that the Veteran continued to pursue a previous service connection claim for a bilateral leg disability since December 17, 1997, but no earlier. Generally, the effective date for an award based on an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application, therefore. 38 U.S.C. § 5110(a). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where a claim is granted based on new and material evidence received within an appeal period or prior to an appellate decision, the effective date shall be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q). New and material evidence means evidence not previously submitted to agency decisionmakers which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Board finds that this claim was initiated prior to that date, the former regulations apply. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. If an informal claim for service connection is received identifying the disability claimed, and within one year thereafter a formal claim for service connection is received, the effective date shall be no earlier than date of receipt of the informal claim. 38 U.S.C. § 5110. In this case, the Veteran originally raised the issue of service connection for his bilateral leg disabilities at a Decision Review Officer (DRO) hearing in March 1990 regarding a separate claim filed for increased rating for a lumbar spine disability and left knee disability. Specifically, it was noted by the Veteran's representative that an injury from a 2 and 12 ton truck running over the Veteran in service that led to his back and left knee disabilities also caused injury to the lower limbs. See March 1990 DRO hearing p. 2. In June 1990, the AOJ denied service connection for residuals of a crush injury to the lower limbs. Because the June 1990 rating decision was not appealed, and new and material evidence was not received within one year following its issuance, it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On December 17, 1997, the Veteran submitted an informal claim that he had a bilateral leg disability related to his service-connected lumbar spine disability. The AOJ denied service connection for a bilateral leg disability in a January 1998 rating decision finding that the claim was not well-grounded, as there was no evidence of a relationship between any bilateral disability and any service-connected disability. The Veteran filed a notice of disagreement with the January 1998 rating decision in December 1998. The AOJ issued subsequent rating decisions in December 1999 and January 2000 finding that new and material evidence had not been received. However, the AOJ did not issue a statement of the case (SOC) until May 2009 after the Board remanded the matter in December 2007 for the issuance of an SOC, pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In a July 2009 letter, the Veteran submitted a statement addressed to the Veterans Law Judge (VLJ) who had signed the December 2007 remand and noted among other things that he wanted the VLJ to review documents he had submitted to the AOJ regarding his claim for service connection for a bilateral leg condition secondary to a back disability. He believed that the evidence clearly showed that service connection should be granted. He also reported that he never received the May 2009 SOC and had only recently heard that it was issued by contacting the AOJ and from his representative at the time. An October 2009 Report of Contact notes that the Veteran called in to state that he also never received the SOC that was reissued in August 2009. The September 2009 notice letter accompanying the August 2009 SOC noted that the Veteran had 60 days to submit a VA-Form 9 substantive appeal. The letter also noted that if the Veteran did not respond within 60 days, the AOJ would close his case. In October 2009, the Veteran submitted a private medical examination dated in February 2009 noting that the Veteran had been under his care since July 2001 and that the Veteran had severe sciatic neuropathy secondary to his back disability. In January 2010, the Veteran also submitted a private medical record dated in August 2007 noting that the Veteran had severe radiculopathy from his lumbar spine disability. If new and material evidence is received during the appellate period, VA must reopen the claim. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (stating that a determination must be issued that is "directly responsive" to the new evidence). If VA fails to readjudicate the claim in light of the new and material evidence submitted, the claim remains pending until such readjudication occurs. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (stating that because VA failed to readjudicate a claim in light of new and material evidence received during the appellate period, the claim remained pending despite an intervening adjudication). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156 (a); Shade, supra. Here, the Board finds that the July 2009 correspondence from the Veteran, and the private medical records dated in February 2009 (received in October 2009) and August 2007 (received in January 2010) are all new. Therefore, under Beraud, the AOJ should have provided a determination as to whether it was new and material. The AOJ, however, never decided whether this evidence was new and material evidence under 38 C.F.R. § 3.156(b), and thus, the claim remained unadjudicated, as per the holding in Beraud. In addition, the Board finds that the "low" threshold in Shade has been met as VA's duty to assist was triggered by the fact that the private medical records submitted by the Veteran showed that his radiculopathy of the bilateral lower extremities is related to his service-connected lumbar spine disability. Thus, these records were material, as it raised a possibility of relating the bilateral lower extremity radiculopathy to the lumbar spine disability. The July 2009 statement and the October 2009 private medical record were submitted within the 60 days after the SOC (initially sent in May 2009 and resent in August 2009 with notice in September 2009, respectively). Thus, they were considered as part of the appeal. Since the RO did not issue a rating decision or otherwise consider this evidence in a supplemental statement of the case, and it was material, the claim remained pending until the grant of service connection. As a result, the initial claim remained pending from December 17, 1997, when it was first received by VA. Therefore, the proper effective date for the grant of service connection for radiculopathy of the bilateral lower extremities is December 17, 1997, but no earlier. 2. Entitlement to SMC from October 1, 1983, to July 31, 1988 As noted above, the April 2019 Court Memorandum Decision essentially instructed the Board to address the Veteran's reasonably raised issue of entitlement to special monthly compensation for the period from July 1981 to July 1988. The Court has held that a request for an increase in benefits should be inferred as a claim for SMC regardless of whether it has been raised by the Veteran or previously adjudicated. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). "Special monthly compensation" is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). SMC is also payable where the veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a result of his or her service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Importantly, in order for the Veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in his being in need of regular aid and attendance or being housebound. See Prejean v. West, 13 Vet. App. 444 (2000). In this case, service connection is in effect for schizophrenia to include PTSD, anxiety disorder and depression, bilateral hearing loss, lumbosacral strain, left knee chondromalacia with scar, diabetes mellitus associated with schizophrenia, Peyronie's disease with erectile dysfunction associated with schizophrenia, traumatic arthritis status post fracture of the right great toe, right lower extremity radiculopathy associated with lumbosacral strain, left lower extremity radiculopathy associated with lumbosacral strain, tinnitus, coronary artery disease associated with hypertension, hypertension, and genital scar associated with Peyronie's disease with erectile dysfunction. The Veteran's combined service-connected rating is 100 percent, effective July 30, 1981, 70 percent, effective October 1, 1983, and 100 percent, effective August 1, 1988. Entitlement to SMC based on aid and attendance has been established, effective July 30, 1981, to September 30, 1983, and from March 23, 2009. Entitlement to SMC(k)(1) also has been established from April 14, 2020 (for loss of use of a creative organ). For the period from October 1, 1983, to July 31, 1988, the Veteran was only service connected for schizophrenia to include PTSD, anxiety disorder and depression with a 70 percent rating. At that time the Veteran did not have a single service-connected disability rated as 100 percent, with a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. He also was not permanently housebound by reason of service-connected disability or disabilities, as discussed further below. Thus, SMC under 38 C.F.R. § 3.350(i) is not warranted. In addition, the criteria for SMC based on the need for aid and attendance due to service-connected disability were not met, effective October 1, 1983, to July 31, 1988. The Veteran testified at the November 2016 Board hearing that he only started working with the US Post Office in 1985 and only worked for a few weeks. However, other evidence of record shows that this testimony is not credible, as he contradicts himself on contemporaneous records by repeatedly stating that he did not stop working until 1988. For instance, a March 1985 private treatment record notes that the Veteran had been injured at work in December 1984 while working for the US Post Office. This strongly suggests that the Veteran was actually working at this time even though he stated that he only worked for the post office for a few weeks in 1985. A March 1989 private treatment record also notes that the Veteran was working as a mail carrier for the US Post Office. A June 1989 report of medical examination for disability evaluation notes that the Veteran reported that he was working as a letter carrier from September 1983 to July 1988. The Veteran submitted a statement in October 1989 that he had to resign from the US Postal Service because his back was bothering him, and his left knee was locking up on him. The Veteran later submitted a claim for unemployability in December 1991 and stated that he had worked as a postal carrier from September 1983 to July 1988. On a December 1991 report of medical examination for disability evaluation, the Veteran again noted that he had worked with the US Postal Service from September 1983 to July 1988, and as a caster from June 1991 to October 1991. The Veteran testified at the March 2022 Board hearing that from 1983 to 1985 he was delivering mail, but his knee would go out him and his lower spine would get very weak. See March 2022 Board hearing testimony, p. 8. Although entitlement to SMC does not require unemployability, whether he has been able to conduct certain occupational activities is pertinent to evaluate whether he has been in need of regular aid and attendance. In this case, it appears that the Veteran was not unemployable from October 1, 1983, to July 31, 1988, based on the evidence of ongoing employment with the postal service. Moreover, there is no probative evidence to suggest that the Veteran was housebound since he was leaving the house to work as a mail carrier from October 1, 1983, to July 31, 1988, or that he required the aid and attendance of another person to dress or clean himself, feed himself, attend to the wants of nature, or keep him safe from hazards of the daily environment. 38 C.F.R. § 3.352(a). There is no doubt that the Veteran's service-connected schizophrenia resulted in significant impairment from October 1, 1983, to July 31, 1988. For that reason, he was assigned a 70 percent for his schizophrenia with PTSD, and he has a combined disability rating of 100 percent for his service-connected disabilities for most of the appeal. However, entitlement to SMC only is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). The evidence persuasively weighs against the Veteran's claim for entitlement to SMC based on the need of aid and attendance of another person from October 1, 1983, to July 31, 1988. The Board has considered favorable evidence submitted by the Veteran in the form of his testimony before the undersigned VLJ in March 2022 and the documentary evidence and records that he contemporaneously submitted. However, the evidence of his working for the Postal Service and other points addressed above persuasively outweigh that evidence. Thus, based on evidence of record, the provisions of 38 C.F.R. § 3.352(a) are not met. 3. Entitlement to service connection for a cervical spine disability 4. Entitlement to service connection for a right shoulder disability 5. Entitlement to service connection for a left shoulder disability 6. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability 7. Entitlement to service connection for a left foot disability The Veteran seeks service connection for disabilities of the cervical spine, bilateral shoulders, right knee, and left foot related to an injury in service when an Army truck rolled over him. He is presently service connected for disabilities of the lumbar spine and left knee associated with the truck injury in service; and he further asserts that his right knee disability is related to the left knee disability; and the cervical spine and bilateral shoulders are related to the lumbar spine disability. 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; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In addition, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The record shows that the Veteran has chronic pain in the cervical spine, bilateral shoulders, right knee, and left foot. While there is some discrepancy as to what the diagnoses are for the Veteran's chronic pain symptoms, all reasonable doubt is resolved in the Veteran's favor that the chronic pain in the cervical spine, bilateral shoulders, right knee, and left foot reaches the level of a functional impairment of earning capacity. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The Veteran has a current diagnosis of a cervical strain with ongoing chronic neck and shoulder pain. See, e.g. February 1985 VA examination report; May 1990 VA examination report; and January 2014 VA treatment record. VA treatment records include a January 2014 note showing complaints of 15 years of chronic intermittent neck and bilateral shoulder pain. A November 2014 physical therapy record notes signs and symptoms consistent with bilateral shoulder pain suspected per a degree of degenerative joint disease (including the neck). The Veteran testified at the March 2022 Board hearing that he cannot lift his arms about his shoulders because of his neck injury and that he would have shooting pains in both arms. See March 2022 Board hearing testimony, p. 9. He also testified that his left knee was dislocated during the Army truck incident in service and that it had caused problems in his right knee in that his knee would go out on him if he was going up or down the steps. Id. A November 2019 letter from a neurologist at Kernan Orthopedics and Rehabilitation shows the Veteran had severe cervical pain and severe left and right shoulder pain. The clinician also noted that the Veteran's right knee showed an inner meniscus tear. While a VA examination was provided in January 2015 regarding the right knee disability finding that the Veteran did not have a right knee disability, this examination is 7 years old, and the Veteran testified as to ongoing symptoms in the right knee that supports the presence of a right knee disability. Moreover, as noted above, the November 2019 private medical letter notes that the Veteran has unfavorable ankylosis and a torn meniscus in the right knee. A November 2021 VA emergency room report shows that the Veteran complained that his left foot "locked" and the toes would not go up. Therefore, based on the Veteran's statements regarding functional impairment and current treatment records, the evidence shows that the Veteran has chronic cervical strain, severe pain in the bilateral shoulders limiting the Veteran's ability to lift his arms, and suspected degenerative joint disease of the shoulders and cervical spine, right knee meniscus tear, and left foot locking up requiring emergency room care. These findings are enough to establish present disabilities of the cervical spine, bilateral shoulders, right knee, and left foot, or at least chronic pain reaching the level of functional impairment in earning capacity. See Saunders, supra. The next element of in-service incurrence also is satisfied based on the evidence of a traumatic accident to the Veteran in service when he was run over by an Army truck. The Veteran's service treatment records show that a 2 and a 12 ton truck ran over the Veteran while on field duty in September 1980. The truck reportedly jumped into gear and back over the Veteran rolling over his entire body from the chest to the toes with the dual wheel tires. The Veteran complained of pain in the right foot and right shoulder, as well as deep pain in the chest. He had no other complaints except dizziness when he sat up. The final diagnosis included crush injury to the abdomen, chest, and lower limbs; dislocation of the right hallux, metacarpal phalangeal joint; subconjunctival hemorrhages and tympanic membrane intramembranous hemorrhages secondary to crush injury; strain of the pubic symphysis, grade I; asymmetric intraocular pressure probably secondary to subconjunctival hemorrhages; and myopia with stigmatism. An October 1980 service treatment record notes that the Veteran had a soft tissue injury from the accident in 1980 and was diagnosed with cervical spine strain. He subsequently had complaints of pain in multiple parts of his body including his right posterior cervical spine. See February 1981 service treatment record. A November 1980 clinical record from Walter Reed notes that the Veteran had been on active-duty service and was transferred from Frankfurt Army Regional Medical Center with a diagnosis of sciatica, sciatic nerve pain due to herniated disc, bulging disc, a protruding disc, and possibly a bone spur. He was presently complaining of pain in his right foot, lower back, hips, legs, thighs, shoulders, neck, and left knee. He also complained of numbness in his legs and thighs with weakness in both, as well. It was noted that a few months ago a deuce and a half ton Army Cargo Truck ran over him while on field duty. A soldier apparently jumped the truck into gear and backed over the Veteran rolling over his entire body from his feet with his head with dual wheel tires. Physical examination showed severe pain in the hips, lower back, knees, thighs, legs, feet, and neck. Radiographs were taken of the pelvis, chest, shoulders, hips, thighs, left knee, scapula and right foot, which appeared normal, but it also was noted that severe injury to the hips and lower back were suggested on x-ray. The clinician noted that it was apparent that the severe injuries would continue throughout the Veteran's lifetime. A February 1981 service treatment record shows that the Veteran continued to experience pain in the cervical area and numbness and tingling in both shoulders, both feet, and both knees. As the record shows the presence of current disabilities and/ or functional impairment in earning capacity caused by chronic pain in the cervical spine, bilateral shoulders, right knee, and left foot, and an in-service traumatic accident in service with resulting pain in the cervical spine, shoulders, knees, and feet, the determinative issue is whether there is a relationship between the current disabilities and the in-service injury. After service, a March 1990 VA treatment record notes that the Veteran stated that ever since the accident in 1980 he has had pain in his neck. A May 1990 VA examination report shows that the Veteran complained of experiencing pain and aching in the lower back with radiation of pain up the back to the neck of the neck and back of the head. On examination, discomfort was noted on full backward extension and lateral rotation of the cervical spine. He was diagnosed with cervical strain associated with limitation of motion. The Veteran submitted a claim for special monthly compensation in 2002 noting that he had experienced cervical spine pain since the accident in service in 1980. He submitted a formal claim for service connection for a cervical spine disability in October 2014. VA treatment records include a January 2014 note showing complaints of 15 years of chronic intermittent neck and bilateral shoulder pain. A November 2014 physical therapy record notes signs and symptoms consistent with bilateral shoulder pain suspected per a degree of degenerative joint disease (including the neck). The Veteran submitted a private neurology opinion dated in October 2019 from a neurologist at Kernan Orthopedics and Rehabilitation, which found that the Veteran had bilateral shoulder pain and cervical spine pain that was more likely than not the direct cause of the September 1980 Army Cargo Vehicle incident while he was on active duty. It was noted that the Veteran had cervical spine pain with extreme, severe fatigue, muscle atrophy, pins and needles sensation in the arms, hands, and fingers. A separate November 2019 letter from a neurologist at Kernan Orthopedics and Rehabilitation shows that the medical records reveal evidence that suggests service-connected injury of the cervical radiculopathy that has become severe over the past several years. It was noted that the Veteran had severe cervical pain and severe left and right shoulder pain. The clinician also noted that the Veteran's right knee showed an inner meniscus tear due to the military cargo truck incident in September 1980. In addition, the clinician found that the right knee disability was aggravated by the service-connected left knee disability from an unbalanced gait. It was noted that the Veteran had unfavorable ankylosis of the right knee. On review of the evidence of record, all doubt is resolved in the Veteran's favor that his current disabilities of the cervical spine, bilateral shoulders, right knee, and left foot are related to the truck injury in service. After service, the Veteran had two neck injuries, one in December 1983 when he was struck from behind while driving and had neck pain after. The Veteran also reportedly injured his neck in a work injury in December 1984 when he slipped and fell on steps in a rainy day. However, the Veteran had complaints of pain in the cervical spine prior to these post-service injuries, including complaints of pain in the service treatment records after the accident in service, in addition to complaints of pain in the shoulders, knees, and feet after being run over the truck in service. After service, he continued to have chronic complaints of pain in the cervical spine, shoulders, knees, and feet; and there is medical evidence of record relating the Veteran's current complaints of the truck accident in service. Thus, to the extent that the Veteran had any additional injury to the cervical spine at the time of the injuries in 1983 and 1984, the evidence establishes that the Veteran already had pain in the neck prior to these injuries; and the evidence does not clearly differentiate between the impairment related to the post-service accidents and the accident in service. In Mittleider v. West, the Court found that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, then 38 C.F.R. § 3.102, which requires the Board to employ reasonable doubt, dictates that such signs and symptoms be attributed to the service-connected disability. Mittleider, 11 Vet. App. 181 (1998). The Veteran is competent to report that he experienced pain in the cervical spine, bilateral shoulders, right knee, and left foot since the truck injury in service. His statements and testimony also are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's disabilities in the cervical spine, bilateral shoulders, right knee, and left foot. For the reasons noted above, all doubt is resolved in the Veteran's favor, and service connection for disabilities of the cervical spine, bilateral shoulders, right knee, and left foot is warranted. See 38 C.F.R. § 3.102. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.