Citation Nr: 1308600 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-33 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a prostate disability. 5. Entitlement to service connection for residuals of head trauma. 6. Entitlement to service connection for a left thumb disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to October 1997, from May 1998 to February 1999, and from November 2006 to February 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which, in pertinent part, denied entitlement to the service connection claims on appeal. The issues of entitlement to service connection for right shoulder disability, back disability, prostate disability, residuals of head trauma, and left thumb disability are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Degenerative joint disease of the left knee was diagnosed within the first postservice year following the Veteran's second period of active duty. CONCLUSION OF LAW The criteria for service connection for left knee degenerative joint disease have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. With respect to the claim for service connection decided herein, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In addition, where a veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and certain diseases, such as arthritis, become manifest to a compensable degree within one year after the veteran's military service ends, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The service treatment records show that in December 1996 the Veteran was seen with complaints of knee soreness after a Pepsi machine fell on his left knee causing a laceration, swelling, bruising, and decreased range of motion. X-rays were negative. During a general check-up in July 1997, a notation of degenerative joint disease of the knees was made. On a National Guard health questionnaire dated in April 1998, the Veteran noted that "my knees give me a lot of problems." An October 1999 National Guard treatment record noted the Veteran had an "injury to left knee two years ago." He had recently reported bilateral knee discomfort. The impression was degenerative arthritis of bilateral knees. Anti-inflammatory medications were prescribed. As the record shows a diagnosis of arthritis of the left knee within the first year following the Veteran's separation from his second period of active duty, and that evidence shows that the left knee was compensable (it was manifested by pain), the evidence supports an award of service connection for left knee degenerative joint disease. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). ORDER Service connection for degenerative joint disease of the left knee is granted. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his remaining claims, and for due process considerations. 38 U.S.C.A. §§ 5103A, 1712; 38 C.F.R. §§ 3.159, 3.381, 17.161. The Veteran contends that he injured his right shoulder, back, head, and left thumb during service and that he has current disabilities associated with those injuries. He also contends that he has residual disability from prostatitis in service. The service treatment records show that the Veteran was seen with a right shoulder muscle strain after lifting weights in September 1993. In February 1991 he was struck in the back of the head by tree limbs from a passing truck; he complained of headaches. He was seen with mechanical back pain in August 1989 and low back strain in November 1990. The Veteran was treated for prostatitis in November 1994 and July 1995. In March 1997 he injured his left thumb while restocking a soda machine. The thumb was apparently caught, with decreased blood circulation, for approximately 30 minutes. X-rays were negative. Three weeks later, in April 1997, he was seen with continuing numbness of the medial aspect of the thumb. The assessment was neuropraxia secondary to crush injury, slowly resolving. It is not clear whether the Veteran has any current disability associated with the inservice injuries and prostatitis; a VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of any currently diagnosed prostate, right shoulder, back, head, or left thumb disability, to include its potential relationship to service. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed prostate, right shoulder, back, head, or left thumb disability had its onset in or is otherwise attributable to service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2010). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs