Citation Nr: 23017993 Decision Date: 03/22/23 Archive Date: 03/22/23 DOCKET NO. 19-30 548 DATE: March 22, 2023 ORDER Entitlement to service connection for a bilateral knee disorder is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The Veteran's bilateral knee disorder is etiologically related to his service. 2. The Veteran's right lower extremity radiculopathy is etiologically related to his service. 3. The Veteran's left lower extremity radiculopathy is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 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 February 1963 to August 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in September 2021, with his representative present. A transcript of the hearing has been produced and associated with the Veteran's claims file. In December 2021 and again in August 2022, the Board remanded the claims to the RO for additional evidentiary development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a showing of chronic disease in service, there is required 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 or a diagnosis including the word chronic. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for a condition on a secondary theory of entitlement if the condition is shown to have been caused or aggravated by a condition for which service connection has already been established. See 38 C.F.R. § 3.310. The term aggravated in this context means that, although the secondary condition was not caused by the service-connected condition, the secondary condition was worsened by the service-connected condition. The veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a bilateral knee disorder is granted. The Veteran essentially contends that he has a bilateral knee disorder that developed as a result of military service. Significantly, the Veteran believes that his bilateral knee disorder is the result of all the physical activities he engaged in during service, including physical training and the constant running. Service treatment records reflect that the Veteran reported a slight pain in the knees, a history of swollen and painful joint and joint pain in the knees, mostly at night especially during cold weather at his April 1983 Report of Medical History. A May 1983 service discharge examination found the Veteran's lower extremities to be normal. Post service treatment records show that the Veteran was seen for a VA examination in November 1983, at which time he noted that his knees had been burning at night for five or ten years, the right more than the left. Turning to the question of whether there is an etiological relationship between the Veteran's service and his diagnosed bilateral knee disorder, the Board notes that the record contains several etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below. A March 2022 VA examination report reflected the Veteran's reports that his bilateral knee symptoms started in service, that he was seen and treated with aspirin and that he had experienced more frequent pain knee pain in the last six years. Following examination of the knee, the examiner reported a diagnosis of bilateral patellar enthesopathies. The examiner opined that the claimed knee condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was no history of bilateral knee condition while serving on active duty or within one year from release and that complaints of back pain as memorialized in the service treatment records are subjective complaints with no objective clinical evidence found. The examiner indicated that the Veteran's current diagnosis of bilateral patellar enthesopathies was not diagnosed in service and is not progression of the claimed bilateral knee disorder; she further noted that the Veteran's knee condition is secondary to the aging process. In an April 2022 addendum to the March 2022 VA examination, the VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that there was no history of bilateral knee condition while serving on active duty or within one year from release. The examiner indicated that complaints of back pain as memorialized in the service treatment records are subjective complaints with no objective clinical evidence found. The examiner noted the Veteran's general testimony about history of knee pain and numbness in service and continuing to the present from the September 3, 2021 hearing transcript and other statements, including but not limited to current diagnoses of arthritis. The examiner noted that, on review of the November 22, 1983 examination report, no arthritis of the knees was found; and, the Veteran might have had knee pain that is frequent due to military duties, there was no evidence of any confirming diagnosis of arthritis or other pathologies during active duty, therefore no condition was found. An October 2022 VA examiner stated that there was no diagnosis of a knee condition and opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner explained that there was no objective evidence of a diagnosable knee condition, and the Veteran's subjective knee pain does not affect range of motion and the claims file does not support radiological evidence of arthritis. In contrast, in an October 2022 VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the X-ray of 2022 shows evidence of enthesopathy which is related to inflammation of the tendons of the ligaments of the knee, this is due to overuse of the knee which is part of duties required of a soldier; the examiner noted that the findings on the X-ray is the reason for the knee pain and the numbness. The examiner opined that this proves overuse of the knee related to exertional activities, which is related to military service as complaints of knee pain were made on activity duty. The examiner explained that the significance of the claim back pain is that it establishes that the condition began while on active duty; the symptoms that the veteran experiences is due to disc disease lumbosacral spine. The examiner opined that the disc disease is most likely causing the radiculopathy in the Veteran's knees, which is manifested partly as knee pain. The examiner further noted that this is significant in that it demonstrates that the condition began while on active duty and that the veteran's disc disease was noted caused radiation of pain to the groin region, that this is from the lumbosacral spine and not from the cervical spine and that the significance of the date is that it establishes that the condition began while on active duty. The examiner further noted that imaging studies show inflammation in the tendons and ligaments of the knee which is usually attributed to stress. After careful consideration of the opinions of record, the Board finds the evidence is at least in equipoise (meaning about evenly balanced) as to whether the Veteran's bilateral knee disorder is related to or the result of his military service. The VA examiners are medical professionals competent to render an opinion on this matter. The opinions were supported by adequate rationales and consideration of the record, although they reach opposing conclusions. Thus, the Board finds that the opinions of record are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds no adequate reason to favor the negative opinion over the positive opinion that is favorable to the Veteran's claim. The Board also notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Therefore, given the positive and negative opinions as to the etiology of the Veteran's bilateral patellar enthesopathies, the Board finds the evidence is in equipoise as to whether the Veteran's current bilateral patellar enthesopathies was caused by service. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for a bilateral knee disorder is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for right lower extremity radiculopathy is granted. 3. Entitlement to service connection for left lower extremity radiculopathy as is granted. The Veteran contends that his bilateral nerve condition in the lower extremities developed as a result of military service. Alternatively, the Veteran maintains that the radiculopathy involving his lower extremities is secondary to the knee disorder and/or his service-connected cervical spine disorder. Service treatment records show that the Veteran was seen in August 1981 with back pain in the lower left side radiating to the left lower extremity. The assessment was left ureteral distal calculus. Turning to the question of whether there is an etiological relationship between the Veteran's service connected cervical spine degenerative disc disease and his diagnosed bilateral lower extremity radiculopathy, the Board notes that the record contains several etiology opinions which must be considered and weighed. See Hayes v. Brown, supra. When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, supra. The Board will consider each of these opinions below. A March 2022 VA examiner opined that the claimed right and left lower extremity radiculopathy are less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale was that the Veteran is service connected for cervical radiculopathy of the upper spine which is not related to lumbar radiculopathy and the examiner noted that these are two different separated anatomical areas. In an April 2022 addendum opinion, the VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that the Veteran had no diagnosis of lower back condition during active duty; therefore, bilateral lower extremity radiculopathy was not incurred in or caused by the inservice event or injury. The examiner further noted that the degenerative disc disease of the cervical spine is not related to symptoms that affect lower extremities. The examiner noted that medical literature reported the description of cervical radiculopathy as a clinical condition that may involve the neck, shoulder, or arm pain, muscle weakness, sensory symptoms or diminished deep tendon reflexes, either alone or in combination. The examiner further noted that cervical nerves root supply sensory information that affect areas in the upper part of the body causing radiculopathy symptoms. Therefore, the examiner concluded that bilateral lower extremity radiculopathy was not incurred by inservice cervical spine degenerative disc disease. The examiner further opined that there is no evidence that supports correlation of aggravation of lower extremity radiculopathy by the service-connected cervical spine degenerative disc disease; there is no relationship among them. Following a VA peripheral nerves conditions examination in November 2022, the VA examiner reported a diagnosis of bilateral lower extremity radiculopathy. The examiner opined that it is less likely than not that the Veteran's bilateral lower extremity radiculopathy is related to military service. The examiner noted that the Veteran's service treatment records are silent for any chronic or recurrent right or left lower extremity radiculopathy complaints, and there is no chronicity or continuity of care for radiculopathy involving the lower extremities while in service or in the immediate year after discharge from service. Therefore, the examiner concluded that it is at less likely than not that the Veteran's current diagnosis of bilateral lower extremity radiculopathy was incurred in and/or caused by service. In contrast, an October 2022 VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the pertinent medical records show that the Veteran has radiculopathy in the cervical spine which is causing shoulder pain in addition to the radiculopathy in the lumbosacral spine which is causing knee pain. The examiner stated that, from a perspective of timeline, all conditions can now be said to be directly related to military service as the timeline establishes that all conditions were noted to have begun while the Veteran was on active duty. The examiner explained that degenerative disc disease is a condition in which the discs press down on the nerves, which can result in pain manifested in different regions of the body due to nerve signals in the body's extremities receiving incorrect sensory information. The examiner noted that this is a known residual of degenerative disc disease and depending on the location of the degenerative disc disease can impact the upper extremities, the lower extremities, or both set of extremities as is the case in the veteran owing to the presence of degenerative disc disease in both his cervical and lumbosacral spine as demonstrated on imaging studies noted on exams for the cervical and lumbosacral spine as well as on a peripheral nerves VA noted in pertinent medical records. The Board finds no adequate reason to favor the negative opinion over the positive opinion that is favorable to the Veteran's claims. The Board also notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. Cf. Mariano v. Principi, supra. (Continued on the next page) Therefore, given the positive and negative opinions as to the etiology of the Veteran's bilateral lower extremity radiculopathy Board finds the evidence is in equipoise as to whether the Veteran's current bilateral lower extremity was caused by his service. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for a bilateral lower extremity radiculopathy is warranted. The appeals are granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.