Citation Nr: 1305804 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-20 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc disease and post laminectomy syndrome of the lumbar spine. 2. Entitlement to service connection for lumbar radiculopathy, to include as secondary to degenerative disc disease and post laminectomy syndrome of the lumbar spine. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for residuals of a traumatic brain injury (TBI), claimed as concussion residuals. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for posttraumatic stress disorder (PTSD). 8. Entitlement to an initial rating in excess of 10 percent for adjustment disorder with mixed anxiety and depressed mood. REPRESENTATION Appellant represented by: Erik Greiner, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to January 1986, from November 1986 to July 1997, and from July 2005 to June 2006. The Veteran also had unspecified active duty service in Hungary, Kuwait, and Iraq in 2003 and 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and January 2009 rating decisions of the St. Petersburg, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. As a preliminary matter, the Board notes that there is some uncertainty in the record regarding the exact dates of the Veteran's periods of active service. His most recent DD-214 indicates that he served on active duty from July 2005 to June 2006, but also states that the Veteran had periods of active duty in support of Operation Iraqi Freedom in Kuwait and Iraq in 2004. In addition, a DD-215 issued in June 2004 corrects a previous separation date to May 2003, indicating active duty service in 2003 as well. For the purposes of this decision, the Board finds that the record contains ample evidence to conclude that the Veteran served on active duty service in 2003 and 2004 in various foreign postings including Hungary, Kuwait, and Iraq. The issues of entitlement to service connection for PTSD and an initial rating in excess of 10 percent for adjustment disorder with mixed anxiety and depressed mood are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Degenerative disc disease and post-laminectomy syndrome of the lumbar spine, is etiologically related to active duty service. 2. Radiculopathy of the right lower extremity is etiologically related to active duty service. 3. Sleep apnea is etiologically related active duty service. 4. Residuals of a TBI, currently diagnosed as a cognitive disorder, is etiologically related to active duty service. 5. A right knee disability, currently diagnosed as a right meniscal tear, status post meniscectomy, is etiologically related to active duty service. 6. A left knee disability, currently diagnosed as a left meniscus tear, is etiologically related to active duty service. CONCLUSIONS OF LAW 1. Service connection for degenerative disc disease and post-laminectomy syndrome is warranted. 38 U.S.C.A. §§ 1110, 1111, 1131(West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for radiculopathy of the right lower extremity is warranted. 38 U.S.C.A. §§ 1110, 1111, 1131; 38 C.F.R. § 3.303. 3. Service connection for sleep apnea is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. Service connection for residuals of a TBI, currently diagnosed as a cognitive disorder, is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. Service connection for a right knee disability, currently diagnosed as a right meniscal tear, status post meniscectomy, is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 6. Service connection for a left knee disability, currently diagnosed as a left meniscal tear, is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Lumbar Spine Disability and Radiculopathy The Veteran contends that service connection is warranted for a low back disability as it was aggravated during his active duty service in 2004. As an initial matter, the Board finds that the record clearly establishes a current disability. The Veteran has undergone treatment for low back pain with VA and private health care providers throughout the claims period, and was diagnosed with degenerative disc disease and post laminectomy syndrome of the lumbar spine upon VA examinations in September, November, and December 2008. The Veteran has also received consistent treatment and diagnoses of radiculopathy of the right lower extremity associated with his lumbar spine disability. The first element of service connection is therefore demonstrated. The Board must next determine whether there is evidence of in-service incurrence or aggravation of the claimed disability. Service records indicate several instances of in-service back injuries during each of the Veteran's periods of active duty. The Veteran testified in October 2012 that he injured his back during his first period of active service due to parachuting out of planes. Although service records do not contain any treatment for back pain during this period of service, the Veteran was treated for other injuries associated with parachuting. Additionally, during the second period of military service, the Veteran was diagnosed with a low back strain in September 1992 after moving generators. The Veteran's second period of active duty ended in July 1997. Almost three years later, in March 2000, he underwent a lumbar laminectomy to repair multiple lumbar spine disc herniations and bulges. Records associated with this surgery are not included in the claims file, but the Veteran has reported that he incurred a significant post-service injury to his lumbar spine that necessitated the surgery. Recent private treatment records, including a May 2006 letter from his private physician, indicate that the spine surgery was successful and the Veteran returned to active duty several years later without evidence of back problems. During his third period of active service, the Veteran was deployed to Iraq. Service records note that in August 2004, he jumped from a vehicle during a combat operation and further injured his back. In November 2004, he was seen with complaints of radiating low back pain and was referred for an orthopedic consultation. In January 2005, his treating physician noted a prior history of surgery in 2000, but found that the Veteran's condition and recurrent low back pain were exacerbated by his active duty deployment in Iraq. A January 2005 MRI of the lumbar spine demonstrated multilevel degenerative changes and disc protrusions and bulges. The Veteran continued to receive treatment with various military and private physicians, and in November 2004 and June 2005 the military determined that his August 2004 low back injury was incurred in the line of duty during a period of active service. In November 2007, a military Medical Board found that the Veteran was unable to fulfill his duties as an active duty soldier due to chronic low back pain and radiculopathy. Service records clearly document treatment for low back injuries and radiculopathy during service. However, the record also contains evidence that the Veteran's low back disorder may have pre-existed service; he incurred a significant low back injury and underwent surgery in 2000, during a period of non-military service. Thus, his low back disability and radiculopathy could have pre-existed his most recent period of active service. As there is evidence that the conditions pre-existed service, the Board must consider whether the presumption of soundness is applicable in this case. For purposes of establishing service connection under 38 U.S.C.A. § 1110, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (emphasis added). Service treatment records do not include the Veteran's enlistment examination for his last period of active service. Therefore, a pre-existing back condition was not noted at the time of his enlistment and the presumption of soundness is for application. See Doran v. Brown, 6 Vet. App. 283, 286 (1994) (where entrance examination was missing, case treated as if the presumption of sound condition attached because Court concluded, "as a matter of law, that the presumption of soundness was rebutted by clear and unmistakable evidence . . . ."). After review of the evidence, including the Veteran's credible lay statements and testimony, the Board finds that the presumption of soundness is not rebutted. The record establishes that the Veteran's disability clearly and unmistakably pre-existed service as numerous military and private treatment records indicate that he incurred a significant injury to his low back in 2000 and underwent a lumbar laminectomy in March 2000. A February 2000 MRI (performed in response to complaints of low back and right leg pain) demonstrated lumbar disc degeneration and multiple instances of disc herniations. Although the evidence establishes that the disability pre-existed service, there is evidence of aggravation during service. In January 2005, the Veteran's physician found that his August 2004 injury had exacerbated the previous lumbar spine disability. Similarly, an April 2005 private examination report clearly notes that the Veteran exacerbated his sciatic nerve root during the August 2004 injury. Therefore, the Board cannot conclude that the Veteran's pre-existing disability was not aggravated as a result of active duty service. As the record does not contain clear and unmistakable evidence that demonstrates the Veteran's low back disability was not aggravated during active service, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for direct service connection, rather than one based on aggravation. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As discussed above, the record documents several in-service back injuries beginning with the Veteran's instances of parachute jumps in the 1980s and culminating with his August 2004 injury in Iraq. The record also contains a medical opinion in support of the claim. After examining the Veteran in May 2006, a private doctor opined that his lumbar disc disease and disc protrusion (as shown on a January 2005 MRI) were certainly due to the Veteran's history of parachute jumps. Moreover, the Veteran has reported a credible competent continuity of symptoms since service. His most recent treatment records document continuous treatment for low back pain and associated right radiculopathy dating from the August 2004 injury in Iraq, and the November 2004 and June 2005 line of duty determinations confirm that this incident occurred during active duty service. The Veteran has continued to receive treatment for low back pain and right radiculopathy since service, and the Board finds that his statements regarding continuous symptoms are credible and verified by the competent medical evidence of record. The Board notes that the record contains some medical opinions weighing against the claims. The November 2008 and December 2008 VA examiners both concluded that the Veteran's current low back disability and radiculopathy were not related to active service. However, these opinions do not include any discussion of the numerous service treatment records that document treatment for back injuries during service. In addition, the December 2008 VA examiner noted that the record did not contain any post-deployment treatment for low back pain, a statement not supported by the myriad medical records documenting treatment for low back pain and right radiculopathy during and after the Veteran's return from Iraq. The weight of the credible and competent evidence of record therefore clearly links the Veteran's current low back disability and right radiculopathy to active duty service. As all the elements necessary for service connection are established, the claims for service connection for degenerative disc disease and post-laminectomy syndrome of the lumbar spine and associated radiculopathy of the right lower extremity are granted. As a final matter, the Board notes that the record only establishes the presence of radiculopathy of the right lower extremity associated with the Veteran's degenerative disc disease of the lumbar spine. None of the Veteran's treating physicians have identified neurological abnormalities of the left leg, and the Veteran has never reported radiating pain down his left leg. Thus, the award of service connection for radiculopathy is limited to the right lower extremity only. Sleep Apnea The Veteran contends that service connection is warranted for sleep apnea as the disability has its onset during his most recent period of active duty service. The Board finds that the record clearly establishes a current disability; following a February 2008 private polysomnogram, the Veteran was diagnosed with severe obstructive sleep apnea. He has continued to receive treatment for the disability throughout the claims period, and sleep apnea was diagnosed upon VA examination in September 2008. Service treatment records are negative for evidence of sleep apnea; however, the Veteran testified in October 2012 that he began to experience symptoms of sleep apnea during active duty service in 2003 and 2004. The Veteran is considered competent to report injuries that occurred during military service, and he has submitted several lay statements in support of his claim. In May 2012, VA received three statements from friends of the Veteran who served with him on active duty in Hungary in 2003. Each statement details how the Veteran snored extremely loudly and would often cease breathing while sleeping. The Board finds that the lay statements and testimony are credible and concludes that an in-service injury is demonstrated. The record also contains competent evidence of a link between the Veteran's current disability and in-service symptoms of sleep apnea. A private physician opined in October 2012 that the Veteran's sleep apnea had its onset during active duty service. This opinion was based on review of the Veteran's reported history of the condition and the May 2012 lay statements. In addition, the Veteran has reported a credible continuity of symptomatology since service. He has consistently maintained throughout the claims period that his sleep apnea began during active duty and has continued to the present day. As all three elements of service connection are present in this case, entitlement to service connection for sleep apnea is granted. TBI The Veteran contends that he incurred a TBI due to several instances of head trauma during his periods of active duty service. He testified in October 2012 that he experienced three head injuries and periods of unconsciousness during active service; first, when he was knocked out following a parachute exercise, second, when he was involved in a motor vehicle accident, and third and most recently, in 2004 when his convoy in Iraq was attacked with an improvised explosive device and he jumped out of his vehicle. The record establishes the presence of a current disability. In July 2008, the Veteran was seen by his VA primary care physician with complaints of headaches and difficulty concentrating. He was referred to the TBI clinic at the Pensacola VAMC, and in September 2008 was diagnosed with a TBI, probably due to a 1980 parachute injury, and an associated cognitive disorder. The TBI examiner noted that the Veteran manifested mild impairment to attention and severe impairment to memory and word recall. These findings were confirmed by a July 2009 neuropsychology examination at the VAMC which diagnosed a TBI and noted decreased mental processing and perception organization. A November 2008 sensory organization test also verified that the Veteran experienced vestibular symptoms with poor performance during the portions of the test that required him to close his eyes. The Veteran has continued to receive treatment at the TBI clinic and the Board finds that a current disability is established. Service treatment records document several head injuries. In March 1980, the Veteran was taken to an emergency room (ER) after landing on his head following a parachute jump. He reported loss of consciousness and was diagnosed with a mild concussion following head trauma. He was seen a few days later in the troop clinic with complaints of vomiting and dizziness due to his head injury. A March 1980 neurological consultation demonstrated some confusion and disorientation and the Veteran was diagnosed with status post concussion and closed head trauma. There is no other evidence of treatment associated with a head injury until October 1987 when the Veteran was treated in the ER following a motor vehicle accident. At that time, he reported a brief loss of consciousness but no head trauma was diagnosed. During the Veteran's most recent period of active service, he was treated for injuries associated with an incident that occurred in August 2004 in Iraq when he jumped from his vehicle in a convoy during a combat operation. Service records do not document any treatment or complaints related to a head injury in 2004, but the Veteran has reported that he began to experience symptoms of memory loss and balance problems following this incident. The Board therefore finds that the evidence establishes the incurrence of three head injuries during the Veteran's periods of active duty service. The record also contains competent evidence of a nexus between the Veteran's in-service head injuries and his current TBI and cognitive impairment. At his initial VA TBI clinic consultation in September 2008, his symptoms were attributed to his in-service head injury in 1980. A July 2009 VA psychologist also found that the Veteran's TBI was related to his three in-service instances of head trauma, with the most recent trauma in 2004 contributing the most to his impairment. Although VA examiners concluded in November 2008 and December 2008 that there was no clinical evidence to support the finding of residuals from the Veteran's closed head injuries, the Board finds that the other evidence of record, including the reports from the VA TBI clinic and the results of the November 2008 sensory organization test, outweigh the opinions of the VA examiners. Service connection is therefore warranted for the Veteran's residuals of a TBI, to include a cognitive disorder. Bilateral Knees The Veteran contends that service connection is warranted for disabilities of both knees as they were incurred due to injuries during active service. He testified in October 2012 that he initially injured his right knee in the 1980s and required surgery and incurred additional injuries to both knees in 2004 in Iraq while jumping out of a vehicle during combat. The record establishes the presence of current right and left knee disabilities. Private MRI reports dated from January 2009 and March 2009 document meniscal tears of the right and left knees, and the Veteran underwent a right knee arthroscopy with meniscectomy in March 2009. He also testified that his left knee was operated on six months later, though records associated with this surgery are not included in the claims file. Although a September 2008 VA examination report notes no objective evidence of current right and left knee disabilities, the private MRI and surgical reports clearly document the presence of bilateral knee conditions. The first element of service connection-a current disability-is therefore demonstrated with respect to both knees. Service records also document right and left knee injuries. In June 1979, the Veteran complained of right knee pain and while the associated medical record is difficult to read, it appears a diagnosis of chondromalacia was rendered. Two years later, in November 1981, the Veteran again complained of a sharp pain in his right knee and an X-ray was conducted to rule out a stress fracture. The X-ray demonstrated mild narrowing of the medial joint compartment and a bony prominence on the tibia. The Veteran underwent physical therapy for chondromalacia patella, and in December 1982 was diagnosed with retropatellar syndrome and a possible torn right lateral meniscus during an orthopedic consultation. He underwent an arthroscopic right lateral meniscectomy in March 1983. During the most recent period of active service, the Veteran complained of bilateral knee pain in December 2004 following his deployment in Iraq. X-rays dated from January 2005 were negative, but November 2004 and June 2005 line of determination reports included a left knee injury among the conditions associated with the Veteran's August 2004 injury in Iraq. Thus, service records demonstrate that the Veteran incurred right and left knee injuries during active duty. The record also establishes a nexus between the Veteran's current bilateral knee disabilities and his in-service injuries. The Veteran has credibly and competently reported the onset and continuation of bilateral knee pain since his 2004 deployment in Iraq and the incident where he jumped out of a vehicle during an attack. A private physician also opined in November 2012 that the Veteran's bilateral knee conditions were a direct result of his jumping from a vehicle in Iraq in 2004. The Board further notes that service treatment records clearly document the onset of a right knee disability that required surgery during the Veteran's first period of active service. As there is competent evidence of a link between the Veteran's disabilities and active service, service connection for right and left knee disabilities is granted. Finally, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claims. ORDER Entitlement to service connection for degenerative disc disease and post-laminectomy syndrome is granted. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for residuals of a TBI, currently diagnosed as a cognitive disorder, is granted. Entitlement to service connection for a right knee disability, currently diagnosed as a right meniscal tear, status post meniscectomy, is granted. Entitlement to service connection for a left knee disability, currently diagnosed as a left meniscal tear, is granted. REMAND In October 2007, the Veteran filed a claim for entitlement to service connection for PTSD. In the October 2008 rating decision on appeal, service connection for a psychiatric disorder characterized as an adjustment disorder with mixed anxiety and depressed mood (claimed as PTSD) was awarded effective October 10, 2007. Although the rating decision did not specifically address whether service connection was warranted for PTSD, service connection was clearly granted for an adjustment disorder-a separate psychiatric disorder and diagnoses from the claimed PTSD. The Board finds that the October 2007 rating decision is deemed to have implicitly denied the pending claim for entitlement to PTSD in accordance with the Federal Circuit's decision in Deshotel v. Nicholson, 457 F. 3d 1258 (Fed. Cir. 2006) (if the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied). The Veteran's May 2009 notice of disagreement specifically disagreed with the denial of entitlement to service connection for PTSD; however, this issue was not addressed in the March 2010 statement of the case (SOC). The claim must therefore be remanded to provide the Veteran with a SOC with respect to the issue for entitlement to service connection for PTSD. The Board also finds that the issue of entitlement to an initial rating in excess of 10 percent for adjustment disorder with mixed anxiety and depressed mood is inextricably intertwined with the claim for entitlement to service connection for PTSD. Therefore, it is also remanded to allow for complete development of the claim for service connection. Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the Veteran and his representative on the issue of entitlement to service connection for PTSD. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 2. If the Veteran perfects an appeal with respect to the claim for service connection for PTSD, ensure that any indicated development is completed before the claim is returned to the Board, along with the claim for an increased initial rating for an adjustment disorder. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs