Citation Nr: 1318859 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-33 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right elbow disability. 4. Entitlement to service connection for a right shoulder disability. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty for training from September to December 1972; and on active duty from December 1990 to July 1991, and from December 1995 to September 1996. The Veteran performed additional reserve service and retired in 2000. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2012, the Board remanded the issues for further evidentiary development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The issues of entitlement to service connection for right shoulder, left knee, and right ankle disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT The competent evidence preponderates in favor of finding that right elbow epicondylitis was incurred during the Veteran's active duty service. CONCLUSION OF LAW Right elbow epicondylitis was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue of entitlement to service connection for a right elbow disability given the favorable nature of the Board's decision. Analysis Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran asserts that his right elbow disability was incurred when he injured his right wrist in service in February 1996. The Veteran was awarded service connection for right wrist arthritis in a December 2009 rating decision. The Veteran was seen in February 1996 with complaints of right wrist pain. He apparently fell on the ice the day prior and landed mainly on his right hand and wrist. Pain was mainly in the ulnar wrist region and there was slight radiation off and on into the right elbow. The assessment was status post contusion right wrist - rule out fracture. X-rays were negative for any fracture. He was placed on a profile for two weeks. In August 1996, the Veteran reported an injury to his right wrist, but did not mention complaints related to his right elbow. Electrodiagnostic testing in May 1997, to include electromyography and nerve conduction study of the right upper extremity was consistent with right ulnar neuropathy with entrapment along the elbow segment of the ulnar nerve. A May 2000 report of medical history notes a right wrist and elbow injury (fall). A May 2000 reserve examination noted right ulnar neuropathy. On VA examination in July 2009, the Veteran reported that he injured his right wrist when he fell on the ice in 1996. Physical examination and x-rays of the right elbow demonstrated no degenerative changes or evidence of prior injury. The diagnoses were lateral epicondylitis of the right elbow, and right wrist arthritis. Although there was a prior electromyographic evidence of ulnar nerve compression, there were no clinical signs or symptoms of cubital tunnel syndrome at that time. The examiner opined that lateral epicondylitis was not caused by wrist trauma and it was his opinion that the then current right elbow disability was not caused by or a result of the wrist injury. The Board found that the July 2009 VA medical opinion was inadequate because while the examiner addressed whether any current disability was related to the right wrist injury, he did not discuss whether any current elbow disability was due to the fall itself. In December 2012, the Board remanded the claim, in part, to obtain another VA examination and medical opinion. Another VA examination was conducted in January 2013. The examiner diagnosed lateral humeral epicondylitis and opined that the claimed disability was "at least as likely as not" incurred in or caused by service. The examiner noted that the Veteran fell in service and injured his right wrist. He also developed pain over his right elbow secondary to chronic recurrent tendinitis/epicondylitis. The examiner opined that there was a direct relationship between his military injury and his current complaints and findings. As the examiner explained the reasons for his conclusion, which was based on review of the claims file and examination of the Veteran, his opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Given the facts noted above, the Board finds that the competent evidence of record preponderates in favor of granting entitlement to service connection for right elbow epicondylitis. ORDER Entitlement to service connection for right elbow epicondylitis is granted. REMAND As noted above, the Board remanded the claims in December 2012 for additional evidentiary development. The Appeals Management Center obtained additional VA treatment records and scheduled the Veteran for a VA examination, which was conducted in January 2013. Pursuant to 38 C.F.R. § 20.38, when a case is remanded by the Board, the agency of original jurisdiction, following completion of the development, must review the evidence. If any benefits sought on appeal remain denied, the agency of original jurisdiction must issue a Supplemental Statement of the Case. 38 C.F.R. § 20.38 (2012). In this case, the Appeals Management Center did not issue a Supplemental Statement of the Case and it is unclear whether it reviewed the issues on appeal prior to returning the case to the Board. Hence, a remand is in order. In addition, the January 2013 VA examination report and March 2013 addendum do not address all the questions posed by the Board in its prior remand. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Right Ankle Disability Regarding the claimed right ankle disability, a July 1991 report of medical history completed prior to release from a period of active duty, the Veteran reported difficulty with right foot dorsiflexion since his deployment. Clinical evaluation revealed normal lower extremities. Complaints related to the right ankle were not shown during his subsequent period of active service. June 2007 private treatment records note right ankle pain and that the Veteran broke his ankle years ago after falling off a step. In December 2012, the Board directed the agency of original jurisdiction to obtain a medical opinion addressing whether it is at least as likely as not that any right ankle disability is related to a period of active military service or events therein. The examiner was specifically requested to address complaints related to difficulty with dorsiflexion of the right foot in July 1991. The January 2013 VA examiner diagnosed the Veteran with right ankle degenerative arthritis and opined that it was less like than not incurred in or caused by service. The VA examiner explained that there was "no significant record of a serious ankle injury during his career [in service]. Patient states that he injured his right ankle prior to his induction into military service. It is reasonable to assume that x-ray changes of degenerative changes (mild) [are] due to his prior injury into military service." The controlling statute provides that 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 (West 2002); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of soundness, the evidence must clearly and unmistakably show that the disorder at issue pre-existed entry into service and that the disorder did not undergo aggravation in or as a result of service. In this case, a December 1990 examination did not reveal a right ankle disorder, Hence, the VA examiner applied the incorrect standard when determining that the Veteran's right disability preexisted service. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Here, the examiner did not address whether the Veteran's right ankle disability clearly and unmistakably preexisted service. Even assuming the Veteran had some type of right ankle disability before he entered service in December 1990, the question remains whether the disability clearly and unmistakably underwent no aggravation as a result of the Veteran's periods of service, especially in light of his complaint regarding dorsiflexion in July 1991. Notably, the examiner did not complete Section 5 of the Medical Opinion Disability Benefits Questionnaire, which addresses disorders that are determined to have existed prior to service. Thus, a supplemental VA medical opinion is necessary. Left Knee Disability In November 1976, the Veteran reported a history of a left knee injury. The lower extremities were clinically evaluated as normal. In November 1989, he reported a history of a dislocated left knee. Again, the lower extremities were described as normal on examination. Indeed, at examinations in July 1991 and January 1995, the lower extremities were clinically evaluated as normal. Several days following the Veteran's entrance on to active duty in December 1995, he underwent another physical examination. Again, no left knee abnormalities were noted and the presumption of soundness is for application. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Despite the Veteran's reported history, the Board finds nothing in the record to clearly and unmistakably show that a left knee disability preexisted service. In August 1996, prior to separation from active duty, the Veteran reported that his health was worse than on his last examination and a history of a left knee injury was noted. Examination revealed left knee pain with flexion and extension, and that the Veteran might need follow up at VA if the pain persisted. A May 1997 statement from a private orthopedist indicates that the Veteran had a chronic left anterior cruciate ligament tear and should not do any running. A May 2000 Reserve examination indicates that the Veteran had a chronic left anterior cruciate ligament tear. He was placed on a permanent profile of no running, jumping, crawling or stooping. At a July 2006 VA examination the Veteran reported believing that he had dislocated his left knee as a child, although he was unable to recall an event when he actually did so. The appellant said that he first noticed problems with his left knee approximately in the last 10 years, but denied any specific knee injury. The examiner stated that from history and examination, it appeared that the Veteran likely had some meniscal pathology. Regarding etiology, the examiner opined that the left knee problem was less likely as not caused or a result of any injury in the Veteran's service history. He stated that the Veteran did not report a specific event in which he believed he injured his left knee. The examiner opined that it sounded more like a chronic degenerative problem with a likely degenerative meniscus. Private medical records dated in December 2009 document the Veteran's complaints of left knee stiffness, that he could hardly walk and that the joint locked at times. Reportedly an orthopedist said to wait for surgery until he could no longer stand the pain. A football injury 40 years ago was noted. A March 2010 record documents complaints of left knee pain and indicates that the appellant had knee surgery in January 2010. In June 2010 the appellant was seen for follow-up of various disabilities and the examiner commented "left knee replacement." In March 2011, the Veteran was seen with left knee swelling. In its December 2012 remand, the Board determined that the July 2006 VA medical opinion was not adequate and directed the agency of jurisdiction to schedule the Veteran for another VA examination. The VA examiner was to identify any left knee disability and opine whether it was at least as likely as not related to a period of active military service or events therein. The examiner was specifically asked to consider the August 1996 findings of left knee pain with flexion and extension, as well as the May 1997 finding of chronic anterior cruciate ligament tear. The January 2013 VA examiner diagnosed the Veteran with left knee degenerative joint disease/status post total joint replacement. The examiner opined that the claimed disability was less likely than not incurred in or caused by service. In rendering this opinion, the examiner provided confusing rationale. He stated that the injury in service was incidental with no significant follow-up for chronic condition. The examiner, however, did not address the fact that the Veteran complained of left knee pain in August 1996, and was diagnosed with a chronic anterior ligament tear in May 1997 - seven months later. Furthermore, the examiner pointed out that the onset of pain was gradual, was not due to a specific injury, and was one of "natural causes." The Board points out, however, that the Veteran does not need to have had a specific injury in service to be entitled to service connection. Rather, the disability or disease may be incurred in service or of service origin. For example, here the Veteran does not claim a specific injury. Rather, he contends that his left knee disability was caused by repeated stress incurred while military physical fitness standards, to include running and jumping. The VA examiner failed to address the Veteran's primary contention. Hence, a supplemental medical opinion is needed. Right Shoulder Disability In his December 2005 claim, the Veteran reported injuring his right shoulder at the same time he injured his right wrist in February 1996. In November 1976, the Veteran reported a history of a dislocated right shoulder. Clinical evaluation of the upper extremities was normal. In November 1989, the examiner noted traumatic arthritis with restricted right shoulder motion. Examination following release from active duty in July 1991 did not note any complaints or findings related to the shoulder. On examination in December 1995, approximately four days following entry on to active duty, the Veteran's upper extremities were reported as normal. The Veteran was seen in February 1996 with complaints of right wrist pain. Complaints related to the shoulder were not noted. On medical assessment completed in August 1996, the Veteran reported a right wrist injury, but did not mention complaints related to his right shoulder. A May 2000 reserve examination noted right shoulder traumatic arthritis. At a July 2006 VA examination the Veteran reported injuring his right shoulder when he fell on the ice during service. He reported a history of dislocating that shoulder back in 1975 when he fell through a hole, but denied problems after that. Following examination the impression was right shoulder pain. The examiner opined that pain was less likely as not caused or a result of any injury in service. His right shoulder appeared to be more rotator cuff irritation or pathology, which was not likely to have been caused by a fall that happened almost 10 years ago. As noted in the December 2012 remand, because a right shoulder disability was not noted on entry in December 1995, the presumption of soundness applies. Notwithstanding, traumatic arthritis was noted earlier and thus, the Board found clear and unmistakable evidence that right shoulder arthritis preexisted the Veteran's last period of active duty beginning in December 1995. In determining whether the presumption of soundness has been rebutted, however, the Board must consider whether there is clear and unmistakable evidence that the disability was not aggravated during this last period of service. In December 2012, the Board remanded the claim, in part, to obtain a VA examination and medical opinion. Specifically, the examiner was to opine whether it was obvious or manifest that pre-existing right shoulder arthritis was not aggravated during the Veteran's period of active service from December 1995 to September 1996. If any other shoulder disorder was diagnosed, the examiner was to opine whether that disorder was at least as likely as not related to a period of active service, to include the February 1996 fall or secondary (caused or aggravated by) his service-connected right wrist disability. The January 2013 VA examiner diagnosed the Veteran with right acromioclavicular joint degenerative arthritis. In a February 2013 addendum he noted that the Veteran had a significant injury prior to enlistment when he fell off a stage. He opined that it was "less likely than not" that there was a relationship between the Veteran's current right shoulder complaints and service. He also opined that there was no evidence of aggravation during service. As noted above, the examiner applied the wrong standard. In its December 2012 remand, the Board determined that the right shoulder arthritis clearly and unmistakably pre-existed service. The remaining question is whether right shoulder arthritis clearly and unmistakably was not aggravated during a period of active service. Therefore, remand is necessary so that a supplemental medical opinion can be obtained. Accordingly, the case is REMANDED for the following action: 1. Arrange for claims file review by the January 2013 VA examiner to obtain supplemental opinions as to the etiology of the Veteran's right ankle, left knee, and right shoulder disabilities. If the reviewer determines that additional examinations of the Veteran are necessary to provide a reliable opinion, those examinations must be scheduled. The Veteran, however, should not be required to report for another examination as a matter of course, if it is not found to be necessary. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the report of the examiner. a) Right Ankle Arthritis: i) Is there clear and unmistakable evidence (obvious and manifest) that the Veteran had right ankle arthritis prior to any period of active duty (i.e., prior to December 1990 or December 1995)? ii) If so, does the evidence of record clearly and unmistakably show that (a) pre-existing right ankle arthritis was not aggravated by service, or that (b) any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. iii) If right ankle arthritis is not found to have existed prior to the Veteran's periods of active duty, is it at least as likely as not (is there a 50/50 chance) that any such disability had its onset during service, within one year of separation from active duty or was otherwise caused by any incident or event that occurred during service, to include rigorous physical training (running and jumping)? In rendering this opinion the examiner must consider and address the complaints related to difficulty with dorsiflexion of the right foot in July 1991. b) Left Knee Degenerative Joint Disease/ Status Post Total Joint Replacement: Is it at least as likely as not (50 percent or greater probability) that left knee degenerative joint disease had its onset during service, within one year of separation from active duty, or was otherwise caused by any incident or event that occurred during service, to include rigorous physical training (running and jumping)? In rendering this opinion the examiner should consider and address the findings in August 1996 of left knee pain with flexion and extension, as well as the May 1997 finding of a chronic anterior cruciate ligament tear. c) Right Shoulder Acromioclavicular Joint Degenerative Arthritis: The Board has determined that the Veteran's right shoulder arthritis clearly and unmistakably preexisted active duty that began in December 1995. Still, does the evidence of record clearly and unmistakably show that (i) the pre-existing right shoulder arthritis was not aggravated by service, or that (ii) any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. All opinions provided are to include sustainable reasons and bases, with references, when necessary, to information in the claims folder. 2. After completing any additional development deemed necessary, readjudicate the claims remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran must be furnished a Supplemental Statement of the Case, which addresses all of the evidence obtained after the issuance of the July 2012 Supplemental Statement of the Case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs