Citation Nr: 1536039 Decision Date: 08/24/15 Archive Date: 08/31/15 DOCKET NO. 13-16 809 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a recurrent cervical spine disorder to include injury residuals, cervicalgia, and degenerative changes. 2. Entitlement to service connection for a recurrent right knee disorder to include injury residuals, chondromalacia and patellofemoral syndrome. 3. Entitlement to service connection for a recurrent left knee disorder to include injury residuals, chondromalacia and patellofemoral syndrome. 4. Entitlement to service connection for a recurrent lumbar spine disorder to include injury residuals and mechanical low back pain. 5. Entitlement to an initial compensable disability evaluation for the Veteran's right wrist ganglion cyst. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. She had active service from September 1986 to March 1996 and from May 1999 to July 2010. The Veteran served in Iraq. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Winston-Salem, North Carolina, Regional Office which, in pertinent part, established service connection for a right wrist ganglion cyst; assigned a noncompensable evaluation for that disability; effectuated the award as of August 1, 2010; and denied service connection for a cervical spine disorder, a right knee disorder, a left knee disorder, and a low back disorder. In May 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. The Board has reviewed both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record. The Board has reframed the issues on appeal in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The issues of service connection for a recurrent lumbar spine disorder to include injury residuals and mechanical low back pain and the initial evaluation for the Veteran's right ganglion cyst are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Recurrent cervicalgia and cervical spine degenerative changes with neural foraminal narrowing were initially manifested during active service. 2. Recurrent right knee chondromalacia and patellofemoral syndrome were initially manifested during active service. 3. Recurrent left knee chondromalacia and patellofemoral syndrome were initially manifested during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for recurrent cervicalgia and cervical spine degenerative changes with neural foraminal narrowing have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2014). 2. The criteria for service connection for right knee chondromalacia and patellofemoral syndrome have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2014). 3. The criteria for service connection for left knee chondromalacia and patellofemoral syndrome have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103, must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate her claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this decision, the Board grants service connection for a cervical spine disorder, a right knee disorder, and a left knee disorder. As such, no discussion of VA's duties to notify and to assist is necessary as to those issues. II. Service Connection Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 C.F.R. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A. Recurrent Cervical Spine Disorder The Veteran's service treatment records convey that she was seen for neck and cervical spine complaints. A June 1990 treatment record states that the Veteran complained of neck and chest pain. She reported that she had been in a June 1990 head on motor vehicle accident. An assessment of "s/p MVA [without] significant problems" was advanced. A July 1990 treatment record states that the Veteran complained of neck pain and cramping since her June 1990 motor vehicle accident. An assessment of "muscle spasms in neck" was advanced. Clinical documentation dated in August 1991 states that the Veteran complained of neck pain. She reported having been involved in an August 1991 motor vehicle accident. Assessments of cervicalgia, "s/p MVA," cervical spine strain, and trapezius strain were advanced. At a June 2010 examination conducted for VA prior to service separation, the Veteran complained of recurrent neck pain. She reported that she had sustained a neck injury in a motor vehicle accident. On physical and X-ray evaluation of the cervical spine, the Veteran was found to exhibit no abnormalities. The examiner commented that "[f]or the claimant's claimed condition of cervical spine condition, there is no diagnosis because there is no pathology to render a diagnosis." The physician did not note or otherwise discuss the Veteran's documented in-service cervicalgia and cervical spine strain. Given such omission, the Board finds that the June 2010 examination report is of limited probative value. Post-service clinical documentation from the Fort Eustis, Virginia, Army medical facility relates that the Veteran was seen for cervical spine complaints. A December 2012 cervical spine X-ray study states that the Veteran complained of cervical spine pain of 10 years' duration. She presented a history of a prior motor vehicle accident with associated whiplash injury. The evaluation revealed findings consistent with C5-6 degenerative changes with neural foraminal narrowing. Clinical documentation dated in January 2013 and February 2013 conveys that the Veteran complained of recurrent right-sided cervicalgia which extended from the upper trapezius to the base of the neck. Assessments of cervicalgia and right cervical region myofascial pain were advanced. The Veteran testified at the May 2015 Board hearing that she had sustained a recurrent cervical spine disorder during active service and received ongoing post-service treatment for that disability. The Veteran was involved in two in-service motor vehicle accidents with associated neck and cervical spine complaints. Treating military medical personnel diagnosed the Veteran with cervicalgia and cervical spine strain. Following service separation, the Veteran was diagnosed with recurrent cervicalgia and cervical spine degenerative changes with neural foraminal narrowing secondary to her in-service injuries. Given such facts and upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for recurrent cervicalgia and cervical spine degenerative changes with neural foraminal narrowing. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. B. Recurrent Right Knee Disorder The Veteran asserts that service connection for a recurrent right knee disorder is warranted as she sustained an initial right knee injury during active service in 1996 and thereafter was diagnosed with and treated for a right knee disorder to include chondromalacia and patellofemoral syndrome. The Veteran's service treatment records reflect that she was seen for multiple right knee complaints. Clinical documentation dated in February 1996 indicates that the Veteran slipped on some wet steps; fell; and sustained a right knee injury. A September 2002 treatment record states that the Veteran complained of right knee pain of one month's duration. An assessment of crepitus was advanced. A March 2007 treatment record states that the Veteran complained of right knee pain and "crunching" of several years' duration. She presented a history of right knee crepitus in 1996 and right knee chondromalacia in 2002. A contemporaneous right knee X-ray study revealed findings consistent with posterior right knee patellar degenerative changes. An assessment of right knee joint pain was advanced. An April 2007 treatment record states that the Veteran complained of right knee pain and crepitus. She reported that she had fallen on her right patella and subsequently experienced intermittent problems during airborne school and officer candidate school (OCS). An assessment of right knee patellar chondromalacia was advanced. A May 2007 treatment entry notes that the Veteran complained of right knee pain. An assessment of "patellofemoral syndrome: degenerative changes" was advanced. A November 2008 treatment record states that the Veteran complained of right knee pain. An assessment of knee pain was advanced. A March 2009 treatment record states that the Veteran complained of knee pain and a "crack and pop" noise in the joint. She was noted to have a history of patellar chondromalacia. A diagnosis of a "disorder of the knee joint/patella/tibia/fibula" was advanced. A January 2010 treatment record conveys that the Veteran complained of right knee pain of three years' duration which was exacerbated by running and climbing stairs. An assessment of right knee joint pain was advanced. A February 2010 treatment record notes that the Veteran was diagnosed with right patellofemoral syndrome. At the June 2010 examination conducted for VA prior to service separation, the Veteran complained of knee pain, weakness, stiffness, giving way, and locking. She presented a history of an in-service 1996 knee injury. On physical and X-ray evaluation of the right knee spine, the Veteran was found to exhibit no abnormalities. The examiner commented that "[f]or the claimant's claimed condition of right knee condition, there is no diagnosis because there is no pathology to render a diagnosis." The physician did not discuss the Veteran's documented in-service right knee chondromalacia and patellofemoral syndrome. Given such omission, the Board finds that the June 2010 examination report is of limited probative value. In her February 2011 notice of disagreement (NOD), the Veteran conveyed that she had exhibited "snapping and popping of the knee" during the June 2010 examination; her knee continued to be symptomatic; and she was "now taking an injection of Toradol IM to help alleviate the pain." At a January 2013 VA knee examination, the Veteran complained of intermittent right knee pain and stiffness since 1996 which was exacerbated by using the stairs and prolonged driving. The examiner indicate that the Veteran had a bilateral knee condition which was diagnosed in 1996 as "knee/ normal exam no pathology." The examiner failed to discuss the Veteran's documented in-service right knee symptomatology. The examiner's comments as to a 1996 diagnosis of a bilateral knee disorder are unclear as to what, if any, right knee disorder was actually diagnosed. Therefore, the Board finds that the January 2013 examination to be of limited probative value. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate.) In her May 2013 Appeal to the Board (VA Form 9), the Veteran advanced that she had experienced three episodes in the prior 90 days wherein her knees had become acutely symptomatic and gave out while she was getting out of her vehicle and/or walking. The Veteran testified at the May 2015 Board hearing that she had sustained a recurrent right knee disorder during active service and has received on-going post-service treatment for that disability which included prescribed medication. The Veteran injured her right knee in an in-service 1996 fall and was thereafter treated by military medical personnel for right knee chondromalacia and patellofemoral syndrome. She testified on appeal that her recurrent right knee disabilities have remained symptomatic and necessitate the on-going use of prescribed medication. Given such facts and upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for recurrent right knee chondromalacia and patellofemoral syndrome. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. C. Recurrent Left Knee Disorder The Veteran asserts that service connection for a recurrent left knee disorder is warranted as she sustained a left knee injury in 2004 during Operation Iraqi Freedom and was thereafter diagnosed with and treated for a left knee disorder to include chondromalacia and patellofemoral syndrome. The Veteran's service treatment records reflect that she was seen for multiple left knee complaints. Clinical documentation dated in March 2004 reports that the Veteran struck her left proximal anterior tibia on a piece of wood in Iraq "a few months" prior to the examination. A slight "depression deformity" was observed in the area of the trauma. An assessment of left tibial contusion residuals was advanced. A July 2004 physical evaluation relates that the Veteran presented a history of "knee trouble" and a "'scounching' sound in [left] knee cap assessment considered 'chondromalacia.'" A diagnosis of a "history of retropatellar pain syndrome now asymptomatic" was advanced. A November 2008 treatment record states that the Veteran complained of left knee pain and "grating sensation." An assessment of knee pain was advanced. A March 2009 treatment record states that the Veteran complained of knee pain and a "cracking noise" in the joint. She was noted to have a history of patellar chondromalacia. A diagnosis of a "disorder of the knee joint/patella/tibia/fibula" was diagnosed. At the June 2010 examination conducted for VA prior to service separation, the Veteran complained of knee pain, weakness, stiffness, giving way, and locking. She presented a history of an in-service 1996 knee injury. On physical and X-ray evaluation of the left knee spine, the Veteran was found to exhibit no abnormalities. The examiner commented that "[f]or the claimant's claimed condition of left knee condition, there is no diagnosis because there is no pathology to render a diagnosis." The physician did not discuss the Veteran's documented in-service left knee chondromalacia and patellofemoral syndrome. Given such an omission, the June 2010 examination report is of little probative value. A January 2011 treatment record from the Fort Eustis, Virginia, Army medical facility notes that the Veteran complained of left knee pain and popping. On examination of the left knee, the Veteran exhibited crepitus with joint motion. An assessment of left knee patellofemoral dysfunction was advanced. The Veteran was treated with an injection and prescribed medication. In her February 2011 NOD, the Veteran conveyed that she exhibited "snapping and popping of the knee" during the June 2010 examination; her knee continued to be symptomatic; and she was "now taking an injection of Toradol IM to help alleviate the pain." At the January 2013 VA knee examination, the Veteran complained of intermittent left knee pain and stiffness since 2004 which was exacerbated by using the stairs and prolonged driving and had required a January 2011 injection of Toradol. The examiner indicate that the Veteran has a bilateral knee condition which was diagnosed in 1996 as "knee/ normal exam no pathology." As noted above, the Board concludes that the examiner's findings as to a 1996 diagnosis of a bilateral knee disorder are unclear and the examination report is therefore of limited probative value. In her May 2013 Appeal to the Board (VA Form 9), the Veteran advanced that she had experienced three episodes in the prior 90 days wherein her knees were symptomatic and gave out. The Veteran testified at the May 2015 Board hearing that she had sustained a recurrent left knee disorder during active service and had received on-going post-service treatment for that disability including a Toradol injection. The Veteran injured her left knee in 2004 while in Iraq and was thereafter treated by military medical personnel for left knee chondromalacia and patellofemoral syndrome. She testified on appeal that her recurrent left knee disabilities have remained symptomatic and necessitate on-going post-service treatment. Given such facts and upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for recurrent left knee chondromalacia and patellofemoral syndrome is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for recurrent cervicalgia and cervical spine degenerative changes with neural foraminal narrowing is granted. Service connection is warranted for recurrent right knee chondromalacia and patellofemoral syndrome is granted. Service connection is warranted for recurrent left knee chondromalacia and patellofemoral syndrome is granted. REMAND Recurrent Lumbar Spine Disorder The Veteran asserts that she incurred a recurrent lumbar spine disorder as the result of her multiple in-service motor vehicle accidents. A June 1990 treatment record states that the Veteran was involved in a June 1990 motor vehicle accident and complained of low back strain. A July 1990 treatment record indicates that the Veteran complained of intermittent low back pain since her motor vehicle accident. An assessment of low back pain was advanced. An August 1991 treatment record states that the Veteran was involved in a second motor vehicle accident and complained of low back pain. An assessment of back pain was advanced. An April 2010 treatment record notes that the Veteran's "problems" include lower back pain. In an undated written statement received in May 2015, the Veteran advanced that she had been treated in November 2013 for chronic mechanical low back pain. At the May 2015 Board hearing, the Veteran clarified that she received all of her medical treatment at the Fort Eustis, Virginia, Army medical facility. Clinical documentation of the cited treatment is not of record. Clinical documentation dated after February 2013 is not of record. VA should obtain all relevant retired military, VA, and private treatment records which could potentially be helpful in resolving the Veteran's claims. See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The report of the June 2010 examination conducted for VA states that "[f]or the claimant's claimed condition of lower back condition, there is no diagnosis because there is no pathology to render a diagnosis." The examiner did not note or otherwise discuss the Veteran's documented in-service low back injuries or her recurrent low back pain. The report of the January 2013 VA examination indicates that the examiner responded "no" to the question as to "[d]oes the Veteran now have or has he/she ever been diagnosed with a thoracolumbar spine (back) condition?" The examiner did not note or otherwise discuss the Veteran's documented in-service low back injuries and recurrent low back pain. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the noted deficiencies in the June 2010 and January 2013 VA examination reports, the Board finds that further VA spinal examination is necessary to adequately resolve the issues raised by the instant appeal. Right Wrist Ganglion Cyst The Veteran asserts that a compensable evaluation is warranted for her right wrist ganglion cyst as her service-connected right wrist disability encompasses carpal tunnel syndrome (CTS) and tenosynovitis in addition to the ganglion cyst. In her May 2013 Appeal to the Board (VA Form 9), the January 2013 VA examination was inadequate for rating purposes as it failed to address her diagnosed right wrist CTS and tenosynovitis. The Veteran's written statement may be reasonable construed as a claim for service connection for both right CTS and right wrist tenosynovitis. The RO has not adjudicated the issues of service connection for right CTS and right wrist tenosynovitis. Given the Veteran's contentions and the nature of the claimed disorders, the Board finds that the newly raised issues are inextricably intertwined with the certified issue of the initial evaluation of the Veteran's right wrist ganglion cyst. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide information as to all treatment of her claimed recurrent lumbar spine disorder after February 2013, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact the Fort Eustis, Virginia, Army medical facility and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If the identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 338 C.F.R. § 3.159(e) (2014). 2. Associate with the record any VA clinical documentation not already of record, including that pertaining to treatment of the Veteran after February 2013. 3. Schedule the Veteran for a VA spine evaluation in order to determine the nature and severity of her claimed recurrent lumbar spine disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. If no recurrent lumbar spine disorder is identified, the examiner should specifically state that fact. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified recurrent lumbar spine disorder had its onset during active service; is related to the Veteran's documented in-service motor vehicle accidents and/or low back pain; or otherwise originated during active service. All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 4. Adjudicate the intertwined issues of service connection for right CTS and right wrist tenosynovitis. The Veteran should be informed in writing of the resulting decision and her associated appellate rights. The issues are not on appeal unless there is both a NOD and a substantive appeal as to each issue. 5. Then readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claims for benefits, to include a summary of the evidence considered, since the issuance of the statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs