Citation Nr: 1323125 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 13-02 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a right hip disorder. 6. Entitlement to service connection for a left hip disorder. 7. Entitlement to service connection for a right shoulder disorder. 8. Entitlement to service connection for a left shoulder disorder. 9. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to June 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, in which the RO, in pertinent part, denied service connection for disorders of the right and left ankles, knees, hips, and shoulders, and found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for hyperostosis of the lumbar spine. In his December 2012 VA Form 9 (substantive appeal) the Veteran requested a videoconference hearing before a Veterans Law Judge. In April 2013, the Veteran withdrew his hearing request. There are no outstanding hearing requests of record. The Board has reviewed the contents of the Veteran's Virtual VA file (e-folder) and found that it contains additional medical evidence that has been considered by the RO in the December 2012 statement of the case (SOC). Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Review of the record reveals that further action on the claims on appeal is warranted. The Veteran was afforded a VA examination to evaluate his claimed right hip and right ankle disorders in February 2011. He reported injuring his right ankle during a hard landing from a parachute jump in service. He stated that he was told at that time that his ankle was sprained. He described persistent right ankle pain since that time, worse with weather changes. He reported injuring his right hip during jump school when he had a hard fall from a parachute jump, with reinjury from another hard landing later in service. The Veteran stated that he developed persistent right hip pain since this re-injury, which he had treated with oral medication. Examination of the right ankle revealed tenderness. X-ray of the right ankle was normal. X-ray of the right hip was also normal. The examiner stated that there was no diagnosis in regard to the right ankle, although the right ankle condition impacted the Veteran's occupational activities in that he had pain. The examiner specifically commented that the current X-rays were normal and physical examination did not reveal a diagnosis in regard to the right ankle. The examiner did diagnose trochanteric bursitis of the right hip. The examiner opined that it was less likely than not that the Veteran's claimed right ankle and right hip conditions were caused by or a result of his service as a parachutist. In providing a rationale for this opinion, he acknowledged review of the claims file, but stated that there was no evidence of a right ankle or right hip injury and there was no diagnosis of a right ankle condition in the VA treatment records. He observed that the Veteran was seen at the VAMC in 2004 for left (but not right) hip pain and added that there was no diagnosis of a right hip condition in the VA treatment records. He summarized by stating that there was no objective evidence in the service treatment records or the claims file which would serve to form the basis for a medical opinion relating the Veteran's current right ankle or right hip pain to his time in service. He concluded by stating that, in the absence of such evidence, the Veteran's current right ankle and right hip conditions were less likely as not caused by or a result of his service as a parachutist while on active duty. The Veteran underwent another VA examination in April 2011. He reported spraining his right and left ankles in jump school in 1968. He described injuring his right hip, right knee, and right shoulder in a hard fall from a parachute jump, for which he saw a medic in the field. He added that he injured his left shoulder and left knee in another jump. The Veteran stated that he was given a profile in service and had to stop parachuting, after which he re-enlisted for aircraft electrician school. He also described the onset of left hip pain in service, although he did not identify a specific injury. He added that he was also assaulted in service, for which he received medical treatment and was noted to have many bruises. The Veteran stated that his doctor had told him he had arthritis in his joints. In recording the Veteran's medical history, the examiner noted no history of trauma to the joints. X-rays of the right and left knees revealed mild osteoarthritis with meniscal calcification. X-ray of the left ankle revealed mild osteoarthritis with calcaneal spur. The examiner reviewed prior X-rays of the right ankle, right and left hips and right shoulder, which were normal. He rendered diagnoses of supraspinatus and infraspinatus tendinitis of the right shoulder, infraspinatus tendinitis of the left shoulder, trochanteric bursitis of the bilateral hips, osteoarthritis of the bilateral knees, and osteoarthritis of the left ankle. He stated that there was no diagnosis in regard to the right ankle. The examiner opined that the Veteran's claimed bilateral ankle, hip, knee, and ankle conditions were less likely as not caused by or a result of his service as a parachutist on active duty. [The reference to ankle conditions twice is, most likely, a typographical error, as the examiner presumably intended to write bilateral ankle, hip, knee, and shoulder conditions.] In providing a rationale for this opinion, he commented that the Veteran was seen once in service for left hip pain, but no diagnosis was provided and the service treatment records did not include any other information relative to a shoulder, hip, knee or ankle condition. He added that the Veteran separated from service in 1972 and the next clinical note referencing a joint condition was the 2004 treatment for right shoulder and left hip pain. Therefore, he commented, there was a gap in the medical records from separation from service until the mention of a joint condition some 32 years later. In light of this, and the lack of an in-service diagnosis of a left hip condition, he opined that it was not possible to trace the Veteran's current conditions to his time in service. He concluded by stating that, in the absence of any information in the 32 year period between separation from service and 2004, the Veteran's claimed conditions were less likely as not caused by or a result of his service as a parachutist on active duty. Because VA undertook to provide a VA examination to evaluate the claimed service-connected disorders, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Due to inadequacies in the VA examiner's opinion, a supplemental opinion is warranted. The VA examiner indicated that, while the Veteran was seen in service for left hip pain, his service treatment records did not include evidence regarding his other claimed disorders. However, in January 1970, the Veteran described back pain in the shoulder area. Physical examination was negative; nevertheless, this record documents a complaint pertinent to the claims for service connection for right and left shoulder disorders. Additionally, while the VA examiner stated that there was a gap in the medical records between 1972 and 2004, private chiropractic records document that the Veteran received treatment for his right shoulder in January 1988 and reported right hip pain in March 1988. He complained of pain in the upper extremity in April 1991. These records indicate that the VA examiner's opinion, at least in regard to the claimed right shoulder and hip disorders, was based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). Additionally, the VA examiner's negative nexus opinion was based on an absence in the service treatment records of information relative to the claimed shoulder, right hip, knee or ankle conditions, and did not include a diagnosis of a left hip condition and, in recording the Veteran's medical history, the examiner noted no history of trauma to the joints. The Veteran has repeatedly described incurring in-service injuries as a result of parachute jumps in service. His Form DD 214s document his receipt of the parachutist badge. The Board accepts the Veteran's assertions of in-service injuries resulting from parachute jumps as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a). The examiner also did not address the Veteran's reported injuries from being beaten up in service. In his May 2011 NOD, he specifically asserted that he was kicked repeatedly in the shoulders and felt that this incident caused a lot of his problems with his shoulders. The Veteran is competent to report in-service injuries, such as being beat up in service. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Veteran has also reported pain since service, as indicated in his December 2012 VA Form 9. He is competent to report a continuity of symptomatology. Charles v. Principi, 16 Vet. App. 370 (2002). The report of a continuity of symptomatology suggests a link between his current complaints regarding pain affecting the ankles, knees, hips, and shoulders and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Despite the Veteran's reports of pain since service, the VA examiner based his negative opinion on an absence of a 32 year gap in the medical records regarding treatment for a joint condition following separation from service. The Court has held, however, that lay evidence cannot be found to lack credibility merely because it is unaccompanied by corroborating contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Court has also determined that a VA examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). For the foregoing reasons, remand is required to obtain a supplemental medical opinion which considers the Veteran's reports of in-service injuries and the in-service report of shoulder pain, the documented complaints regarding the right hip and shoulder in 1988, and the Veteran's report of pain since service. The Board observes that the present record does not reflect that the Veteran has a current right ankle disability, as indicated in the February and April 2011 VA examination reports. In his December 2012 VA Form 9, the Veteran asserted that he routinely saw a chiropractor and his family doctor for problems with his right hip, knee, shoulder, back, neck, and ankles, and took pain medication from is family doctor, as well as over the counter medication. Private treatment records from the Veteran's primary care physician, Dr. D., and his chiropractor, Dr. C., were requested in February 2011. The following month, Dr. D. submitted treatment records dated from February 2007 to December 2009 and Dr. C. submitted records dated from January 1988 to January 2007. The December 2012 VA Form 9 indicates that additional private treatment records, which are potentially pertinent to the claims on appeal, are available. On remand, the AMC/RO should attempt to obtain any additional pertinent private treatment records. See 38 C.F.R. § 3.159(c)(1) (2012). The Board further notes that the most recent VA treatment records currently available for the Board's review are dated in April 2012. On remand, the AMC/RO should obtain any more recent pertinent VA treatment records. Finally, as discussed in the introduction, in the May 2011 rating decision, the RO found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for hyperostosis of the lumbar spine. In his May 2011 notice of disagreement (NOD), the Veteran asserted that the RO had not responded to injuries he received due to being beaten in service, adding that he felt this incident caused a lot of the problem with his back. The Board finds that this statement expresses disagreement with the May 2011 decision to deny reopening of the claim for service connection for a lumbar spine disorder. By filing a timely NOD with May 2011 rating decision, the Veteran has initiated appellate review on the request to reopen a claim for service connection for hyperostosis of the lumbar spine; however, the RO has yet to issue an SOC with respect to this claim, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, the request to reopen a claim for service connection for hyperostosis of the lumbar spine must be remanded for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran and his representative an SOC as regards the request to reopen a claim for service connection for hyperostosis of the lumbar spine, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here a request to reopen a claim for service connection for hyperostosis of the lumbar spine-a timely appeal must be perfected within 60 days of the issuance of the SOC. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his ankles, knees, hips, and/or shoulders. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for records from the Veteran's family doctor and chiropractor (as discussed in his December 2012 VA Form 9) and any records from the Lexington VA Medical Center (VAMC), dated since April 2012. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 3. After all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the physician that conducted the February and April 2011 VA examinations, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should identify all disorders of the right or left ankles, knees, hips, and shoulders, as documented in the record. In regard to each OR any diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current condition had its clinical onset during active service or is related to any in-service disease, event, or injury. In rendering the requested opinion, the examiner should specifically consider an in-service complaint of left hip pain (as documented in a November 1971 service treatment record) and an in-service complaint of shoulder pain (as documented in a January 1970 service treatment record). He should also consider the fact that the Veteran received chiropractic treatment for his right shoulder in January 1988 and reported right hip pain in March 1988 (as documented in private chiropractic treatment records). The examiner must also consider the Veteran's reports of in-service injuries as a result of parachute jumps and being beaten up in service. The examiner is advised that the Veteran is competent to describe such injuries. The examiner must also consider the Veteran's reports of pain since service. The examiner is advised that the Veteran is competent to describe pain since service. The examiner should not rely on the absence of evidence in the Veteran's service treatment records to provide a negative opinion regarding the relationship between the Veteran's claimed disabilities and service. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinion. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examiner's opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters that 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 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). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).