Citation Nr: 1615525 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 11-28 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of an eye injury. 2. Entitlement to service connection for dry eye syndrome. 3. Entitlement to service connection for a bilateral leg disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for an upper back disability. 6. Entitlement to service connection for a left shoulder disability. 7. Entitlement to service connection for a right knee disability. 8. Entitlement to service connection for a left knee disability. 9. Entitlement to service connection for a bilateral ankle disability. 10. Entitlement to service connection for plantar fasciitis. 11. Entitlement to service connection for a sinus disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to March 1986 and from January 10, 2003 to October 28, 2003. The Veteran also had prior and subsequent Army Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a hearing before a Decision Review Officer (DRO). In September 2015, she testified at a hearing before the undersigned Veterans' Law Judge. Transcripts of those hearing are of record. The issues of entitlement to service connection for a cervical spine disability, upper back disability, left shoulder disability, a left knee disability, bilateral ankle disabilities, plantar fasciitis, and a sinus disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At her September 2015 Board hearing, the Veteran withdrew from appellate review her claim of entitlement to service connection for residuals of an eye injury. 2. At her September 2015 Board hearing, the Veteran withdrew from appellate review her claim of entitlement to service connection for dry eye syndrome. 3. At her March 2011 DRO hearing and September 2015 Board hearing, the Veteran withdrew from appellate review her claim of entitlement to service connection for a bilateral leg disability. 4. Affording the Veteran the benefit of the doubt, her left knee disability, diagnosed as left knee strain with internal derangement and mild degenerative changes, is related to active military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of appeal as to the issue of entitlement to service connection for residuals of an eye injury have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of appeal as to the issue of entitlement to service connection for dry eye syndrome have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 3. The criteria for withdrawal of appeal as to the issue of entitlement to service connection for a bilateral leg disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 4. The criteria for service connection for a left knee disability, diagnosed as left knee strain with internal derangement and mild degenerative changes, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veteran's Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). In this decision, the Board withdraws three claims in accordance with the Veteran's request and grants entitlement to a left knee disability. The grant of service connection for a left knee disability constitutes a complete grant the Veteran's claim decided herein. Therefore, no discussion of VA's duty to notify or assist is necessary. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2015). At her March 2011 DRO hearing, the Veteran and her representative requested to withdraw her claim for service connection for a bilateral leg disability. Nevertheless, the RO did not withdraw that issue and the subsequent August 2011 statement of the case included that issue and the Veteran's substantive appeal included that issue. At her Board hearing in September 2015, the Veteran and her representative requested to withdraw her pending appeals for service connection for residuals of an eye injury, dry eye syndrome, and a bilateral leg disability from appellate consideration. The transcript of the hearing has been reduced to writing and is of record. Thus, this Appellant has withdrawn the appeals on these issues and, hence, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on these issues and it is dismissed. Left Knee Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran is seeking service connection for a left knee disability, which she asserts began during her training at Airborne School and has continued since that time. The evidence of record supports the Veteran's assertions. The April 2010 VA examination report, as well as private treatment records indicate that the Veteran is diagnosed with a left knee strain, left knee internal derangement, and mild degenerative changes of the left knee. Additionally, a March 2, 1981 service treatment record indicates that the Veteran had ongoing left knee pain for the last 3-4 days. Upon examination, the Veteran had tenderness during range of motion testing. She was assessed with a mild left knee strain and instructed to wrap her knee with an Ace wrap, apply heat, and take Aspirin. A March 6, 1981 service treatment record indicates that the Veteran was participating in "Tower Week" and needed to be re-evaluated for ongoing left knee pain. The service treatment record noted that the Veteran was feeling better, but was instructed to continue wrapping her knee with an Ace wrap, applying heat, and taking Aspirin. The Board notes that the rest of the Veteran's service treatment records are silent for any diagnoses or treatment related to her left knee. However, the Veteran's service treatment records are incomplete and it appears that many of her records are missing. With regard to ongoing left knee symptoms during service, the Veteran submitted two lay statements from fellow service members to corroborate her assertion that she experienced ongoing left knee symptoms during the remainder of her initial period of active service and during her second period of active service. In a February 2010 letter, G. P., fellow service member and the Veteran's ex-husband, stated that that the Veteran had originally injured her left knee during airborne training and thereafter she continued to experience chronic knee pain and was repeatedly treated at sick call. In a January 2011 letter, K. A. stated that he had served with the Veteran from January 2003 until December 2004 and that during that time he observed the Veteran's chronic knee pain and had firsthand knowledge that she had gone to sick call for her knee symptoms on multiple occasions. In an undated letter received in December 2009, Dr. C. S. noted that the Veteran had been injured in March 1981 during Airborne School and had suffered from knee pain since that time. In April 2010 the Veteran was provided a VA Joints Examination. The examiner opined that the Veteran's left knee strain was less likely as not caused by active service. The examiner stated that he was unable to make a direct connection between the Veteran's in-service and current knee symptoms. In support of that finding the examiner noted that there was no available documentation indicating that the Veteran had a chronic knee problem during or within 18 months of her initial period of active service. An October 2010 treatment records from Dr. D. S. indicated that the Veteran reported ongoing left knee pain, which had been ongoing for several years. Dr. D. S. noted that the Veteran had injured her left knee during Airborne School and had continued pain around her joint line since that time. In a November 2010 letter, Dr. D. S. stated that the Veteran was diagnosed with left knee internal derangement and noted that she had been injured approximately 29 years ago during Airborne School. Dr. D. S. opined that her injury had become more severe since that time. In an October 2011 letter, D. S. stated that the Veteran was under his care for a left knee condition which had begun on March 2, 1981 as a result of injuries the Veteran sustained during military service. Dr. D. S. noted that the Veteran's condition was progressive and chronic in nature, and had been caused by her strenuous physical training, running in combat boots, standing for long periods of time, and parachuting with a 52 pound pack. After review of the record, the Board finds that the evidence is at the very least in equipoise regarding the question of whether the Veteran's current left knee disability arose during active service. Accordingly, the benefit of the doubt rule will be applied and service connection for a left knee disability, diagnosed as left strain with internal derangement and degenerative changes, is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). ORDER The appeal as to the issue of entitlement to service connection for residuals of an eye injury is dismissed. The appeal as to the issue of entitlement to service connection for dry eye syndrome is dismissed. The appeal as to the issue of entitlement to service connection for a bilateral leg disability is dismissed. Entitlement to service connection for a left knee disability, diagnosed as a left knee strain with internal derangement and mild degenerative changes, is granted. REMAND The Board regrets the additional delay, but finds that further development is necessary prior to appellate review. The evidence of record suggests there are outstanding private and VA treatment records that may be relevant to the Appellant's claims. At her September 2015 hearing the Veteran stated that she had been receiving treatment at the Baltimore VA Medical Center since approximately June 2013. To date, the record does not contain any VA treatment records. With regard to private treatment records, the Veteran submitted letters and excerpts of treatment records from various private providers. However, these records are incomplete and suggest that there are outstanding private treatment records. Specifically, an October 12, 2010 treatment record from Sugar Orthopedics noted that the Veteran had been referred to a podiatrist, Dr. V.; a November 2010 evaluation report from Legacy Physical Therapy indicates that the Veteran was scheduled for ongoing physical therapy treatment for the next 30 days; a December 10, 2010 treatment record from Florida Ear & Sinus Center noted that the Veteran had been seen five weeks prior to that date and was scheduled for a follow up appointment in four months; and an undated letter from Dr. C. S. of Siesta Spine & Sport indicated that he had been the Veteran's chiropractor since November 2008. Treatment records from these providers do not include documentation of the aforementioned treatment. In light of the foregoing, reasonable attempts to obtain the Veteran's outstanding private treatment records should be made on remand. With regard to the Veteran's orthopedic claims, she was provided a VA Joints Examination in April 2010. She was diagnosed with bilateral ankle strain, left shoulder strain, cervical strain, and upper thoracic strain. The examiner opined that the aforementioned conditions were less likely as not caused by the Veteran's service. In support the examiner noted that there was no documentation available of any chronic shoulder or ankle problem during service or within 18 months of the Veteran's active service. With regard to the Veteran's cervical and thoracic strain, the examiner noted that there was no documentation available of any chronic shoulder or ankle problem during service or within 12 months of the Veteran's active service. At her September 2015 hearing, the Veteran's representative asserted that the examination report was inadequate because in examiner improperly relied on commentary from the regional office and ignored the fact that the Veteran's service treatment records were incomplete. The Board notes that the examination report contained numerous references to the RO's finding that the Veteran was not assigned to an airborne unit and therefore only had five parachute jumps. Additionally, the examiner did not address the Veteran's assertions that her disabilities were also related to strenuous physical training requirements during service, did not address any of the positive lay evidence regarding the Veteran's in-service symptoms, or address the undated, conclusory but positive opinion from Dr. C. S. indicating that the Veteran's cervical spine, neck and shoulder conditions resulted from injuries during Airborne School. Lastly, the examiner stated that the Veteran was not claiming service connection for her right knee. Accordingly, the examiner did not render a diagnosis or opinion regarding whether the Veteran's right knee symptoms were related to service. Nevertheless, the Veteran perfected an appeal on her right knee claim and has asserted that she injured her right knee when she jumped into a foxhole. Accordingly, on remand another VA examination is necessary. With regard to her claims for plantar fasciitis and sinusitis (also claimed as allergies with headaches), the Veteran has not been afforded a VA examination. The Veteran has diagnoses of plantar fasciitis, allergic rhinitis, and chronic sinusitis. While the Veteran's service treatment records do not document treatment for or diagnoses of these conditions, as noted above the Veteran's service treatment records are incomplete. The Veteran asserts that she was treated for these conditions during her active duty service and has experienced ongoing foot pain and sinus symptoms since service. In a February 2010 and January 2011 letters, fellow service members, G. P. and K. E., stated that they observed the Veteran with visible foot pain and sinus symptoms during service and noted that the Veteran had sought treatment for these symptoms at the troop dispensary. Based on the foregoing, the Board finds that an initial VA foot examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, at her March 2011 DRO hearing the Veteran asserted that her cervical spine and left shoulder injury were secondary to her upper back injury. While the Veteran is not service-connected for an upper back disability, for the sake of efficiency the Veteran should be provided notice in accordance with the Veterans Claims Assistance Act (VCAA) on how to substantiate a claim for secondary service connection. Accordingly, the case is REMANDED for the following actions: 1. Issue to the Veteran a VCAA notice letter advising her how to substantiate a claim for service connection on a secondary basis. 2. Obtain any outstanding VA treatment records, to include those since June 2013. If requested records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 3. Ask the Veteran to provide the names and addresses of all medical care providers, including any primary care providers, orthopedists, allergists, chiropractors, or physical therapists, which have treated her for the disabilities on appeal. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran and her representative should be notified of such. 4. After the above development is completed to the extent possible, schedule the Veteran for a VA orthopedic examination to determine the relationship, if any, between her bilateral ankle strains, right knee symptoms, cervical strain, upper thoracic strain, and left shoulder strain and her military service. Following review of the claims file, the examiner should: a. Identify any bilateral ankle, right knee, upper back, cervical spine, and left shoulder diagnoses, to include but not limited to bilateral ankle strain, left shoulder strain, cervical strain, and upper thoracic strain. b. For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the condition is related to the Veteran's active service, to include her Airborne Training and in-service physical training in combat boots. Please explain why or why not. In rendering the above requested opinions, the examiner should address the undated letter from Dr. C. S., received in October 2011, and the November 2010 letters from Dr. D. S. indicating that the Veteran's neck, shoulder, upper back, and knee conditions were related to her military service. The examiner should also consider the February 2010 and January 2011 letters from G. P. and K. E. regarding the Veteran's in-service symptoms. 6. Schedule the Veteran for a VA foot examination to address the Veteran's claim for service connection for plantar fasciitis. The claims file must be reviewed in conjunction with the examination. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide the diagnosis for any right or left foot identified. Then, the examiner should provide an opinion as to whether any current right or left foot disability is at least as likely as not (50 percent probability or greater) related to service. In rendering the above requested opinions, the examiner should address the November 2011 letter from Dr. D. S. indicating that the Veteran's plantar fasciitis was related to her military service, including her physical training and parachute jumps. The examiner should also consider the February 2010 and January 2011 letters from G. P. and K. E. regarding the Veteran's in-service symptoms. 7. Schedule the Veteran for a VA examination to address the Veteran's claim for service connection for a sinus disability, also claimed as allergies with headaches. The claims file must be reviewed in conjunction with the examination. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide the diagnosis for any sinus or rhinitis disability identified. Then, the examiner should provide an opinion as to whether any current sinus disability is at least as likely as not (50 percent probability or greater) related to service. In rendering the above requested opinion, the examiner should consider the February 2010 and January 2011 letters from G. P. and K. E. regarding the Veteran's in-service symptoms. 8. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. 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 matters 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs