Citation Nr: 1600688 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 12-24 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a cardiac disorder (characterized as left anterior fascicular block with left axis deviation and claimed as chest pain). 2. Entitlement to an initial rating higher than 10 percent for patellofemoral syndrome of the left knee. 3. Entitlement to an initial rating higher than 10 percent for patellofemoral syndrome of the right knee. 4. Entitlement to an initial rating higher than 10 percent for right wrist sprain. 5. Entitlement to an initial rating higher than 10 percent for left wrist sprain. 6. Entitlement to an initial compensable rating for displaced fracture with sprain of the distal phalanx of the left thumb. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from June 1990 to June 2010. This matter comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for patellofemoral syndrome of the bilateral knees assigning 10 percent ratings each, effective July 1, 2010; sprain of the bilateral wrists, assigning 10 percent ratings, each, effective July 1, 2010; and displaced fracture with sprain of the distal phalanx of the left thumb, assigning a 0 percent rating, effective July 1, 2010. The RO also denied service connection for left anterior fascicular block with left axis deviation. In September 2015, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, DC. The Veteran's representative was not present at the hearing. The Veteran submitted additional evidence during the Board hearing. To the extent that any of the evidence was not duplicative of evidence already considered by the RO, the Veteran waived RO jurisdiction over the evidence during the hearing. See September 2015 Board hearing transcript, p. 3. Thus, a remand, pursuant to 38 C.F.R. § 20.1304 is not necessary. The presiding Veterans Law Judge took testimony on the issue of entitlement to an increased rating for sprain of the right hip, pending further investigation as to whether the Board had proper jurisdiction. Upon closer review of the matter, the Veteran did not submit a timely notice of disagreement with the October 2010 rating decision that granted service connection for the right hip disability and assigned a 10 percent rating, effective July 1, 2010. Therefore, this matter is not presently on appeal. The issue of entitlement to an increased rating for a right hip disability has been raised by the record in testimony submitted by the Veteran at the September 2015 Board hearing. The issue of entitlement to service connection for a back disability, secondary to his service-connected knee disabilities also has been raised by medical evidence submitted by the Veteran dated in January 2015. Neither issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to increased ratings for disabilities of the bilateral knees and bilateral wrists are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. During testimony at the September 2015 Board hearing, the Veteran withdrew his increased rating claim for his left thumb disability. 2. The evidence of record shows that the Veteran's currently diagnosed left anterior fascicular block and left axis deviation is secondary to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an initial compensable rating for displaced fracture with sprain of the distal phalanx of the left thumb have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. The criteria for service connection for left anterior fascicular block and left axis deviation have been met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issue An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Further, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). A governing regulation provides that all withdrawal of appeals must be in writing (or on the record at a hearing). 38 C.F.R. § 20.204(b). In particular, an appeal withdrawal should be filed with the agency of original jurisdiction (hereinafter "AOJ") until the appellant or representative filing the withdrawal receives notice that the appeal has been transferred to the Board. 38 C.F.R. § 20.204(b)(2). The withdrawal statement also must include the name of the veteran, applicable VA file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b)(1). The Veteran testified at the September 2015 Board hearing that he wished to withdraw his increased rating claim for a left thumb disability. Therefore, the Veteran has satisfied the requirements of 38 C.F.R. § 20.204(b) in withdrawing his appeal with respect to the issue of entitlement to an increased rating higher than 0 percent for displaced fracture with sprain of the distal phalanx of the left thumb. Because the Veteran has withdrawn his appeal with respect to that issue, there remain no allegations of error of fact or law for appellate consideration on the issue, and the Board does not have further jurisdiction. II. The Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159; see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this decision, the Board grants service connection for a cardiac disorder characterized as left anterior fascicular block and left axis deviation (claimed as chest pain). As this represents a complete grant of the benefit sought on appeal with respect to that matter, no discussion of VA's duty to notify and assist is necessary. III. Service Connection for Cardiac Disorder 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, 1131; 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the holding of the United States Court of Appeals for Veterans Claims (Court) in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). At entry into service, a June 1990 enlistment examination shows a history of heart murmur but that no heart murmur was noted on examination. Clinical evaluation of the heart was normal. The Veteran testified at the September 2015 Board hearing that he had a heart murmur as a child, but that he never had any symptoms prior to service. There is no clear and unmistakable evidence of a pre-existing heart murmur prior to service, including any contemporaneous medical records showing a diagnosis of heart murmur prior to service. As the Veteran's heart was clinically normal at entry into service and there is no clear and unmistakable evidence of a pre-existing cardiac disorder, the Veteran is considered sound at entry into service as to any cardiac disorder. See 38 C.F.R. § 3.304(b). The service treatment records show that the Veteran complained of right-sided chest pain that radiated down the shoulder in January 1993. The assessment was rule-out intermittent muscle spasm right side. Continued complaints of right-side chest pain were noted later in January 1993. The assessment was persistent interstitial muscle spasms. In October 1996 the Veteran was seen for complaints of left-sided chest pain. A July 1997 ECG was normal with normal sinus rhythm and sinus arrhythmia. A past medical history of heart murmur was noted in August 1997. Left-sided chest pain also was noted in October 2000. An EKG showed normal sinus rhythm. Another EKG was performed in March 2001 for complaints of chest pain. There was normal sinus rhythm and chest x-ray was within normal limits. Additional testing was conducted in April 2001 for complaints of chest pain. The impression was normal exercise test. An assessment of atypical chest pain was provided in May 2002. The Veteran reported that the chest pain would last five minutes with sudden onset while sitting, radiating up the right shoulder and with dizziness. An EKG performed in May 2002 noted slight downslope in ST in III with normal sinus rhythm, consistent with multiple EKGs performed from 1999 to 2001. The examining clinician noted that a cardiac etiology of the chest pain was "seriously" doubted. An assessment of costochondritis, which improved with non-steroidal anti-inflammatories, was provided in October 2002. A July 2007 report of medical history shows the Veteran had a heart murmur as a child. It also was noted that the Veteran had an episode of chest pain that was attributed to anxiety. A September 2008 report of medical history shows that the Veteran was noted as having a history of intermittent atypical chest pain and costochondritis since 2002 and that he had been cleared by cardiology in 2002. A final ECG was performed at separation from service in February 2010, which was abnormal. There was a nonspecific T wave abnormality and a normal sinus rhythm. The Veteran underwent a general examination in May 2010. The Veteran reported a history of chest pain, shortness of breath, fatigue, and dizziness that would flare up intermittently. He had never had congestive heart failure, rheumatic heart disease, myocardial infarction, or surgery. Treatment was over-the-counter medications. There was no current treatment required or functional impairment. On physical examination the heart was normal with no congestive heart failure, cardiomegaly, or cor pulmonale. His EKG was abnormal in that there was a left axis deviation with left anterior fascicular block. There also were nonspecific T-wave changes, which were not considered to be clinically significant. He had an underlying normal sinus rhythm. The diagnosis was left anterior fascicular block with left axis deviation. Subjectively the Veteran had intermittent chest pain, dizziness, and fatigue. Objectively, his examination was unremarkable. The EKG again was noted as showing a left anterior fascicular block with left axis deviation. The examiner commented that review of the records showed no documentation of angina. The examiner also noted that the Veteran's left anterior fascicular block and left axis deviation found on EKG was more likely than not related to his underlying hypertension. The Veteran is service-connected for hypertension. As the left anterior fascicular block and left axis deviation found on EKG has been related to his underlying hypertension, the evidence overall is favorable to his claim. While the findings in service were not found to be related to a cardiac disorder, given that the post-service diagnosis of left anterior fascicular block and left axis deviation has been related to a service-connected disability, any remaining doubt is resolved in the Veteran's favor. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for left anterior fascicular block and left axis deviation is granted. ORDER The appeal is withdrawn with respect to the initial rating claim for displaced fracture with sprain of the distal phalanx of the left thumb; and this matter is dismissed. Entitlement to service connection for a cardiac disorder (characterized as left anterior fascicular block with left axis deviation and claimed as chest pain) is granted. REMAND The Veteran seeks increased ratings higher than 10 percent for bilateral wrist disabilities. He is presently rated based on limitation of motion of the wrists under 38 C.F.R. § 4.71a, Diagnostic Codes 5215-5024. However, the Veteran has submitted testimony and statements that the RO has misconstrued his wrist disabilities and that he actually should be compensated for carpal tunnel syndrome of the bilateral wrists, as well. The service treatment records show that he was diagnosed with carpal tunnel syndrome. See, e.g., October 2009 health record at the U.S. Naval Hospital in Guantanamo Bay. Post-service records also show a diagnosis of bilateral carpal tunnel syndrome. See. e.g,, private August 2012 EMG study. The Veteran underwent a VA examination in February 2014 to address the present severity of his bilateral wrist disabilities, but the examination report did not differentiate between any symptoms pertaining to the residuals of sprain of the wrists and his carpal tunnel syndrome that was diagnosed in service. A remand is necessary to resolve this matter. With respect to the bilateral knee disabilities, the Veteran testified that his knees were worse than last evaluated in February 2014. Specifically, the examination report noted that there was no instability. However, the Veteran testified in September 2015 that his knees felt like they were going to give out on him. See September 2015 Board hearing transcript, p. 29. An examination is warranted to assess the present severity of the bilateral knee disabilities. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional treatment he has received for his wrist and knee disabilities since his separation from military service. Make reasonable efforts to obtain any records identified and notify the Veteran of any negative responses and what further steps VA will make concerning his claim. 2. Following the completion of the above development, schedule the Veteran for an appropriate VA examination of his wrists. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays and/ or EMGs if indicated, should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected wrist disabilities. The examiner should conduct range of motion testing of the wrists, specifically noting whether - upon repetitive motion of the Veteran's wrists - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the wrists are used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. Further, the examiner should fully describe the extent and severity of any neurological symptoms in the wrists pertaining to his carpal tunnel syndrome, and to the extent possible, differentiate this impairment from any limitation of motion, and state whether the neurological impairment is mild, moderate, or severe. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 3. Thereafter, schedule the Veteran for a VA orthopedic examination to address the present severity of his bilateral knee disabilities. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner must conduct a detailed orthopedic examination including addressing any limitation in range of motion, instability, subluxation, or ankylosis of the right and left knee joints. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected patellofemoral syndrome. In addressing whether there is recurrent subluxation or lateral instability, if there is this type of impairment, please state whether it is considered slight, moderate, or severe. Please state whether there is impairment (i.e., malunion) of the tibia and fibula with slight, moderate, or marked, knee or ankle disability; or whether there is nonunion of the tibia and fibula with loose motion requiring brace. If there is any ankylosis of the knees, please state to what degree. In conducting range of motion testing of the knees, the examiner should specifically note whether - upon repetitive motion of the Veteran's knees - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the knees are used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 4. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If either report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claim on appeal. If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs