KNEE IMPAIRMENT OF

MATTHEW TENNER · 2023 · Case ID: 23048792

GRANTED

Summary

The Veteran, an Army veteran who served from September 1980 to March 1988, appeals the denial of service connection for disabilities affecting his left leg, right leg, right shoulder, and back. The Veteran claims these conditions resulted from a single-vehicle accident during service in Germany, where he was thrown from a petroleum truck and run over by it after brake failure. His military occupational specialty as a petroleum supply specialist and his service locations in Germany corroborate his account of the accident. The Board found the Veteran's lay testimony, supported by his sister's statement, to be credible, despite the lack of contemporaneous military records documenting the accident. Multiple prior VA medical opinions were found inadequate for failing to properly consider the lay evidence or for relying solely on the absence of continuing treatment. A March 23, 2023, VA-contracted medical opinion provided a positive nexus, stating the bilateral knee disabilities, shoulder disability, and back disability were at least as likely as not due to the in-service accident. The Board found this opinion to be the most probative evidence. Consequently, service connection for a left leg disability, right leg disability, right shoulder disability, and back disability was granted.

Rationale

Veteran's lay report of in-service accident corroborated by sister's statement; Examiner found positive nexus despite lack of military records; Prior opinions found inadequate

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-35 593A

Full Decision Text

Citation Nr: 23048792
Decision Date: 09/06/23 Archive Date: 09/06/23

DOCKET NO. 16-35 593A
DATE: September 6, 2023

ORDER

Service connection for a left leg disability is granted.

Service connection for a right leg disability is granted.

Service connection for a right shoulder disability is granted.

Service connection for a back disability is granted.

FINDINGS OF FACT

1. The Veteran's left leg disability is related to his in-service motor vehicle accident.

2. The Veteran's right leg disability is related to his in-service motor vehicle accident.

3. The Veteran's right shoulder disability is related to his in-service motor vehicle accident.

4. The Veteran's back disability is related to his in-service motor vehicle accident.

CONCLUSIONS OF LAW

1. The criteria for service connection for a left leg disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a right leg disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for a back disability are 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 September 1980 until his honorable discharge in March 1988.

This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c).

This case comes before the Board on appeal from an April 12, 2013, decision issued by a Regional Office of the United States Department of Veterans Affairs (VA). The Veteran initially request a hearing at the Board as part of his appeal but later withdrew that request. August 2019 Correspondence; 38 C.F.R. § 20.704(e).

These claims on appeal have been remanded by the Board in orders dated January 22, 2020; May 28, 2021; May 4, 2022; and January 20, 2023. The primary reason for each remand was to obtain adequate medical opinions addressing the etiology of the Veteran's asserted disabilities and to develop any outstanding military records. For the reasons that follow, the Board is able to award service connection for each asserted disability.

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.

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). It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128?29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

Service Connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F
F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

Service Connection

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an 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). When these elements are satisfied, service connection may be granted on a direct basis.

Analysis

The Veteran asserts the same in-service event caused each of his identified disabilities. He states that he was involved in a single-vehicle military petroleum truck accident during which the brakes failed and he was forced to drive the vehicle into a snowbank. He was thrown from the vehicle and subsequently run over by the truck. He says this accident occurred while he was stationed in Germany and that he was hospitalized for 15 days following the accident due to the injuries he sustained.

The evidence of record shows the Veteran's military occupational specialty (MOS) was petroleum supply specialist. His service personnel records also show that he was stationed in Germany from March 24, 1981, to September 19, 1982, and from September 29,1984 to March 8, 1988. As such, his statement that he was in a single-vehicle accident while transporting petroleum during the winter in Germany is supported by both his MOS and his periods of service in Germany.

1. Service connection for a left leg disability

2. Service connection for a right leg disability

During the claim period, an October 2022 VA-contracted medical examiner diagnosed the Veteran with degenerative arthritis in both knees. The examiner identified the diagnosis date of April 12, 2010. In a medical opinion dated March 23, 2023, a VA-contracted examiner opined that the Veteran's bilateral knee disabilities were at least as likely as not due to his in-service motor vehicle accident.

In support of her opinion, the examiner provided a thorough discussion of relevant evidence. First, she acknowledged the Veteran's lay report of being involved in a motor vehicle accident in service. She noted the Veteran's MOS and tour of duty in Germany aligned with his lay report. She then discussed a statement submitted by the Veteran's sister in January 2014 who recalled the Veteran being hospitalized from a motor vehicle accident in service. She discussed the injuries sustained by the Veteran in her statement. The examiner cited the lack of military records documenting the motor vehicle accident, but she had no medical reason to disregard the Veteran and his sister's lay reports of the accident and subsequent injuries.

Similarly, the Board has no reason to disbelieve the Veteran and his sister's reports of the Veteran's in-service motor vehicle accident and subsequent injuries. The Board observes that prior examiners who have opined about the etiology of the Veteran's bilateral knee disabilities have concluded that his disabilities were not incurred during military service. But the Board has found each of those opinions inadequate on which to rely. Following the Board's most recent remand order, a March 2, 2023, VA-contracted examiner also offered an opinion, finding no positive nexus to service. But that examiner merely relied on the lack of continuing treatment for the Veteran's bilateral knee disabilities. That rationale is insufficient. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that a VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven").

Accordingly, the Board finds the most probative evidence of record addressing the Veteran's bilateral knee disabilities comes from the March 23, 2023, VA-contracted examiner who offered a positive nexus opinion. Therefore, service connection for a right leg and left leg disability is granted.
the Veteran's bilateral knee disabilities. That rationale is insufficient. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that a VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven").

3. Service connection for a right shoulder disability

The Veteran has been diagnosed with subacromial/subdeltoid bursitis and glenohumeral joint osteoarthritis as of October 4, 2019. November 17, 2020; October 13, 2022, VA-Contracted Medical Examinations. He had should joint replacement surgery in February 2020. Id. In a medical opinion dated March 23, 2023, the same VA-contracted examiner who evaluated the Veteran's knee disabilities also opined that the Veteran's shoulder disability (pre-surgical intervention) was at least as likely as not due to his in-service accident.

The examiner's rationale, while not as clear as her rationale addressing the Veteran's knee disabilities, is still sufficient to award service connection. She first discussed the medical history of the Veteran's right should disability. She noted that subacromial bursitis is caused by repetitive, minor impact on the area, or from a sudden, more serious injury." Again, despite the lack of documentation in the Veteran's military records of his motor vehicle accident, the examiner had no medical reason to reject the Veteran and his sister's reports of the accident and resulting injuries to the Veteran. The examiner concluded the development and progression of the Veteran's right shoulder disability was at least as likely as not due to his in-service motor vehicle accident.

The Board observes that prior examiners who have opined about the etiology of the Veteran's right shoulder disability have concluded that his disability was not incurred during military service. But the Board has found each of those opinions inadequate on which to rely. Following the Board's most recent remand order, a March 2, 2023, VA-contracted examiner also offered an opinion, finding no positive nexus to service. But that examiner merely relied on the lack of continuing treatment for the Veteran's shoulder disability. That rationale is insufficient. Buchanan, 451 F.3d at 1336.

Accordingly, the Board finds the most probative evidence of record addressing the Veteran's right shoulder disability comes from the March 23, 2023, VA-contracted examiner who offered a positive nexus opinion. Therefore, service connection for a right shoulder disability is granted.

4. Service connection for a back disability

The Veteran has been diagnosed degenerative arthritis of the spine. November 17, 2020; October 13, 2022, VA-Contracted Medical Examinations. In a medical opinion dated March 23, 2023, the same VA-contracted examiner who evaluated the Veteran's knee and shoulder disabilities also opined that the Veteran's back disability was at least as likely as not incurred in service.

The examiner's rationale, while not as clear as other opinions, is still sufficient to award service connection. She first discussed the medical history of the Veteran's back disability. Despite the lack of documentation in the Veteran's military records of his motor vehicle accident, the examiner had no medical reason to reject the Veteran and his sister's reports of the accident and resulting injuries to the Veteran. The examiner concluded the development and progression of the Veteran's back disability was at least as likely as not due to his in-service motor vehicle accident.

The Board observes that prior examiners who have opined about the etiology of the Veteran's back disability have concluded that his disability was not incurred during military service. But the Board has found each of those opinions inadequate on which to rely. Following the Board's most recent remand order, a March 2, 2023, VA-contracted examiner also offered an opinion, finding no positive nexus to service. But that examiner merely relied on the lack of continuing treatment for the Veteran's back disability. That rationale is insufficient. Buchanan, 451 F.3d at 1336.

Accordingly, the Board finds the most probative evidence of record addressing the Veteran's back disability comes from the March 23, 2023, VA-contracted examiner who offered a positive nexus opinion. Therefore, service connection for a back disability is granted.

Matthew Tenner

Veterans Law Judge

Board of Veterans'
has found each of those opinions inadequate on which to rely. Following the Board's most recent remand order, a March 2, 2023, VA-contracted examiner also offered an opinion, finding no positive nexus to service. But that examiner merely relied on the lack of continuing treatment for the Veteran's back disability. That rationale is insufficient. Buchanan, 451 F.3d at 1336.

Matthew Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.F. Sawka, 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.

Analyze in VA Law Explorer