Citation Nr: 1514151 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 11-08 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a right wrist disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1980 to September 1992, and from February 1999 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta, Georgia. In February 2015, the Veteran testified before a Veterans Law Judge, seated at the RO. A transcript of this hearing has been associated with the claims file. The Veteran also filed a notice of disagreement regarding the November 2007 denial of service connection for gastroesophageal reflux disease. Service connection for gastroesophageal reflux disease was granted by the RO in a January 2011 rating decision. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issue of an increased rating for degenerative disc disease of the lumbosacral spine is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a current diagnosis of internal derangement of the bilateral knees which was incurred during service. 2. The Veteran has a current diagnosis of a right wrist strain which was incurred during service. 3. The Veteran has a current diagnosis of a right shoulder strain which was incurred during service. CONCLUSIONS OF LAW 1. The criteria for service connection for internal derangement of the right knee have been met. 38 U.S.C.A. §§ 1110, 5103, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). 2. The criteria for service connection for internal derangement of the left knee have been met. 38 U.S.C.A. §§ 1110, 5103, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). 3. The criteria for service connection for a right wrist strain have been met. 38 U.S.C.A. §§ 1110, 5103, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). 4. The criteria for service connection for a right shoulder strain have been met. 38 U.S.C.A. §§ 1110, 5103, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable nature of this decision by the Board, there is no further duty to notify or assist the Veteran or to explain how VA complied with the duties to notify and assist. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, 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). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran seeks service connection for disabilities of the bilateral knees, right wrist, and right shoulder. He has asserted these joints were injured during active duty service. Early in July 2007, just prior to the Veteran's separation from active duty service later that same month, he was afforded a VA general medical examination. Resulting diagnoses included internal derangement of the bilateral knees, a right shoulder strain, and a right wrist strain. In Romanowsky v. Shinseki, the Court indicated that McClain v. Nicholson, 21 Vet. App. 319 (2007) did not address the situation where there was a possible inservice diagnosis, followed shortly by the appellant's claim and a VA examination finding of no diagnosed disorder. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The facts in this case are analogous to those of Romanowsky and accordingly the Board finds the inservice diagnosis of internal derangement of the bilateral knees, right shoulder strain and right wrist strain are sufficient to satisfy the criteria for a current disability. Post-service VA treatment records reflect complaints of continued pain and confirm the same or similar diagnoses for the joints at issue. As the Veteran was diagnosed with these disorders while on active duty service and continued to have problems after service separation, the Board finds service connection for these disorders is warranted. Thus, service connection for internal derangement of the right and left knees and strains of the right wrist and right shoulder is warranted. ORDER Service connection for internal derangement of the right knee is granted. Service connection for internal derangement of the left knee is granted. Service connection for a right wrist strain is granted. Service connection for a right shoulder strain is granted. REMAND The Veteran seeks an increased rating for his degenerative disc disease of the lumbosacral spine. This disability was most recently examined by VA in November 2007, over seven years ago. At the February 2015 hearing, the Veteran reported a recent increase in the severity of this disorder. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Accordingly, the case is REMANDED for the following action: 1. Request any pertinent medical records not already received from the Dublin, Georgia, VA Medical Center and any other VA or military facilities at which the Veteran has received treatment for the lumbosacral spine disability. If no such records are available, that fact should be noted for the record. 2. Schedule the Veteran for an examination to determine the current level of severity of the service-connected lumbosacral spine disability. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred. The examination must include range of motion testing, as well as whether additional limitation of motion results from pain, pain on use, weakness, incoordination, fatigability, or related factors. The examiner must also indicate whether the Veteran requires periods of prescribed bed rest due to the lumbosacral spine disability, and the effect of any associated radiating pain. Any resulting neurological impairment must also be noted. A complete rationale must accompany all medical opinions presented. 3. The RO/AMC shall then take such additional development action as it deems proper with respect to the claim. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence and re-adjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs