Citation Nr: 1604553	
Decision Date: 02/08/16    Archive Date: 02/18/16

DOCKET NO.  14-22 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a recurrent left knee disorder to include injury residuals, patellofemoral syndrome, and osteoarthritis.  

2.  Entitlement to service connection for a left shoulder disorder to include injury residuals, supraspinatus tendinosis, and acromioclavicular joint degenerative joint disease.  

3. Entitlement to service connection for a lower extremity neurological disorder to include sciatic, radiculopathy, and "leg and groin pain."  


REPRESENTATION

Appellant represented by:	J. Berry, Attorney



ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel


INTRODUCTION

The Veteran is the appellant in the instant appeal.  She had active service from October 1974 to October 1977.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Detroit, Michigan, Regional Office (RO) which denied service connection for both lumbar spine degenerative disc disease and degenerative joint disease and left shoulder impingement syndrome.  In April 2012, the Veteran submitted a notice of disagreement (NOD).  

In November 2012, the RO denied service connection for "leg and groin pain claimed as possible sciatica."  In December 2012, the Veteran submitted a NOD with the denial of service connection for "leg and groin pain claimed as possible sciatica."

In February 2014, the RO denied service connection for left knee "patellofemoral syndrome claimed as residuals of left knee injury."  In March 2014, the Veteran submitted a NOD with the denial of service connection for a left knee disorder.  

In March 2014, the RO issued a statement of the case (SOC) to the Veteran which addressed the issue of service connection for "leg and groin pain claimed as sciatica."  In September 2014, the RO issued SOCs to the Veteran which addressed the issues of service connection for both a left knee disorder and a left shoulder disorder.  

In September 2014, VA granted service connection for lumbosacral strain with lumbago; assigned a 10 percent evaluation for that disability; and effectuated the award as of January 26, 2011.  

In October 2014, the Veteran submitted Appeals to the Board (VA Form 9) from the denial of service connection for both a left knee disorder and a left shoulder disorder and a NOD with the evaluation assigned for her lumbosacral spine disability.  In March 2015, the RO issued a SOC to the Veteran which addressed the initial evaluation of the Veteran's lumbosacral spine disability.  The Board has reviewed both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files.  This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record.  

A timely substantive appeal was not perfected from the initial evaluation assigned for the Veteran's service-connected lumbosacral strain with lumbago.  Therefore, the issue is not appeal and will not be addressed below.  

The Board has reframed the issues on appeal in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim).  

The issue of service connection for a lower extremity neurological disorder to include sciatic, radiculopathy, and "leg and groin pain" is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.  



FINDINGS OF FACT

1.  Left knee patellofemoral syndrome and osteoarthritis originated during active service.  

2.  Left shoulder supraspinatus tendinosis and acromioclavicular joint degenerative joint disease originated during active service.  


CONCLUSION OF LAW

1.  The criteria for service connection for left knee patellofemoral syndrome and osteoarthritis are met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2015).  

2.  The criteria for service connection for left shoulder supraspinatus tendinosis and acromioclavicular joint degenerative joint disease are met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  In this decision, the Board grants service connection for both left knee patellofemoral syndrome and osteoarthritis and left shoulder supraspinatus tendinosis and acromioclavicular joint degenerative joint disease and remands the issue of service connection for a lower extremity neurological disorder to include sciatic, radiculopathy, and "leg and groin pain" to the AOJ for additional action.  Therefore, no further discussion of VA's duties to notify and to assist is necessary.  


II.  Service Connection for a Recurrent Left Knee Disorder

The Veteran asserts that service connection for a recurrent knee disorder is warranted as she sustained and was treated for recurrent left knee injury residuals during active service which have persistent until the present time.  

Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  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).  

The Veteran's service treatment records reflect that she was treated for left knee complaints.  Clinical documentation dated in April 1976 states that the Veteran complained of a sore left knee of two days' duration. She reported having sustained a left knee injury while playing kickball.  Impressions of a pulled muscle and inflammation were advanced.  

The report of a September 2013 VA knee examination states that the Veteran presented a history of having sustained a left knee injury while performing physical and military training during active service.  The Veteran was diagnosed with left knee patellofemoral syndrome.  The examiner commented that: "[t]here is no history of significant left knee injury or anything that would cause chronic left knee condition from her time in military service;" "[m]ild degenerative changes are seen on X-ray;" and "thus opine (sic) that her claim[ed] left knee condition is less likely than not incurred in or caused by her military service."  

An undated written statement from H. Aljundi, M.D., received in February 2014 conveys that he had reviewed the Veteran's service treatment records and examined her.  He diagnosed the Veteran with left knee patellofemoral syndrome and osteoarthrosis (osteoarthritis).  The doctor opined that: "[i]n my medical opinion, the left knee pain is at least as likely as not (more than 50 percent probability) incurred while in the military;" "[d]egenerative changes as seen on X-ray are consistent with an old injury;" "[o]veruse and overloading the knee joint as in marching and physical training the military uses most likely initiated the left knee condition the patient is experiencing;" "[a]lthough the patient was seen and discharged back to full duty while in the military does not mean that she was fully recovered;" and "[s]ince discharged from the military, patient has not had any traumatic injury to her left knee making her military injury the primary cause of her left knee disability."  

The Veteran sustained and was treated for a left knee injury during active service.  While a VA examiner concluded that the Veteran's diagnosed left knee patellofemoral syndrome and osteoarthritis are not related to her in-service injury, Dr. Aljundi determined that the onset of the Veteran's diagnosed left knee disabilities are consistent with her documented in-service left knee injury.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for left knee patellofemoral syndrome and osteoarthritis.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  


III.  Service Connection for a Left Shoulder Disorder.  

The Veteran asserts that she sustained recurrent left shoulder injury residuals as the result of the same in-service fall in which she incurred her service-connected lumbosacral strain with lumbago.   
The Veteran's service treatment records do not refer to either a left shoulder injury or other recurrent left shoulder disability.  Service connection has been established for lumbosacral strain with lumbago.  

The report of a November 2011 VA shoulder examination states that the Veteran presented a history of having injured her lumbar spine and left shoulder during basic training.  She was diagnosed with left shoulder impingement syndrome and left acromioclavicular arthrosis.  The examiner commented that: [t]he claimed current left shoulder and back condit[i]on were less likely than not incurred in or caused by the claimed  in-service injury and or event;" "[m]y rational for this opinion is that there is no STR or immediate post-military medical record documenting a left shoulder condition as well as having no complaints about the left shoulder on the separation physical;" and "[s]econdary to this, it is my opinion that the current left shoulder condition was less likely than not incurred in or caused by the claimed inservice injury or event."  

An undated written statement from Dr. Aljundi, received in February 2014 conveys that he had reviewed the Veteran's service treatment records and examined her.  He noted the Veteran's subjective history of having fallen "on an outstretched arm during a physical training test in December 1974 while in military basic training."  The doctor diagnosed the Veteran with left shoulder supraspinatus tendinosis and acromioclavicular degenerative joint disease.  He opined that: "[i]n my medical opinion, the left shoulder pain is at least as likely as not (more than 50 percent probability) incurred while in the military;" "[d]egenerative changes as seen on X-ray and MRI are consistent with an old injury;" "[acromioclavicular] joint injuries may be caused by indirect trauma such as falling on an outstretched arm or elbow and over time an osteoarthritic condition of the [acromioclavicular] joint will likely occur;" and the Veteran's "fall while in the military most likely initiated the left shoulder condition."  

The Veteran asserts that she sustained recurrent left shoulder injury residuals as the result of the same in-service fall in which she incurred her service-connected lumbosacral strain with lumbago.  While a VA examiner concluded that the Veteran's diagnosed left shoulder disabilities are not related to her claimed in-service injury, Dr. Aljundi determined that the onset of the Veteran's diagnosed left shoulder supraspinatus tendinosis and acromioclavicular degenerative joint disease is consistent with her subjective history of in-service left shoulder injury.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for left shoulder supraspinatus tendinosis and acromioclavicular degenerative joint disease.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  


ORDER

Service connection for left knee patellofemoral syndrome and osteoarthritis is granted.  

Service connection for left shoulder supraspinatus tendinosis and acromioclavicular joint degenerative joint disease is granted.  


REMAND

During the pendency of the instant appeal, service connection has been established for lumbosacral strain with lumbago.  The Board observes that service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2015).  The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  

The Veteran has not been afforded a VA examination which addresses the relationship, if any, between her claimed lower extremity neurological disorder and her service-connected lumbosacral strain with lumbago.  VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Therefore, further VA neurological evaluation is necessary to adequately resolve the issues raised by the instant appeal.  

Clinical documentation dated after June 2014 is not of record.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim.  See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that she provide information as to all treatment of her claimed recurrent lower extremity neurological disorder after June 2014, including the names and addresses of all health care providers whose records have not already been provided to VA.  Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record.  

If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2015).  

2.  Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, including that provided after June 2014.  
3.  Schedule the Veteran for a VA neurological examination to assist in determining the nature and etiology of the Veteran's claimed recurrent lower extremity neurological disorder and its relationship, if any, to active service and/or the Veteran's lumbosacral strain with lumbago and other service-connected disabilities.  

The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified lower extremity neurological disorder had its onset during active service; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to the Veteran's lumbosacral strain with lumbago and other service-connected disabilities.  

Service connection has been established for lumbosacral strain with lumbago; left knee patellofemoral syndrome and osteoarthritis; and left shoulder supraspinatus tendinosis and acromioclavicular joint degenerative joint disease.  

All relevant medical records must be made available to the examiner for review of pertinent documents therein.  The examination report should specifically state that such a review was conducted.  A rationale for all opinions should be provided.  

4.  Then readjudicate the issue of entitlement to service connection for a lower extremity neurological disorder to include sciatic, radiculopathy, and "leg and groin pain."  If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the last SSOC.  An appropriate period of time should be allowed for response before the case is returned to the Board.  

The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).  



_________________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs