Citation Nr: 1617502	
Decision Date: 05/02/16    Archive Date: 05/13/16

DOCKET NO.  09-49 525	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for periodic leg movement and restless leg syndrome.

2.  Entitlement to service connection for a left elbow disability.

3.  Entitlement to service connection for right ear hearing loss. 

4.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, degenerative disc disease, and intervertebral bulging discs of the cervical spine. 

5.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, degenerative disc disease, and intervertebral bulging discs of the thoracolumbar spine. 

6.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right shoulder with tendonitis. 

7.  Entitlement to an initial compensable disability rating for left elbow bursitis.

8.  Entitlement to an initial compensable disability rating for degenerative joint disease of the right knee. 

9.  Entitlement to an initial compensable disability rating for degenerative joint disease of the left knee. 

10.  Entitlement to an initial compensable disability rating for bilateral pes planus, plantar fasciitis, and Achilles calcaneal spurs.

11.  Entitlement to an initial compensable disability rating for residuals of a scar, status-post left thumb laceration.

12.  Entitlement to an initial compensable disability rating for degenerative joint disease of the first metatarsophalangeal joint of the left great toe. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Donohue, Counsel



INTRODUCTION

The Veteran served on active duty from March 1978 to January 1993 and from June 2003 to February 2006 with additional unverified service from February 2006 to January 2008. 

These matters come before the Board of Veterans' Appeals (Board) on appeal of February 2008 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah and St. Petersburg, Florida, respectively. 

In March 2013 and January 2014, the Board remanded the Veteran's claims in order to schedule him for a hearing.  He subsequently testified at a hearing conducted by the undersigned Veterans Law Judge in April 2015.

The issues of entitlement to service connection for periodic leg movement disorder and a left elbow disability will be addressed in this decision.  The remaining issues are being remanded to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's periodic leg movement disorder is related to the service-connected lumbar spine disability. 

2.  The Veteran's hydrarthrosis of the left elbow is related to service.


CONCLUSIONS OF LAW

1.  The periodic leg movement disorder is proximately due to the service-connected lumbar spine disability.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.310 (2015).

2.  Hydrarthrosis of the left elbow was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Periodic Leg Movement Disorder

The Veteran contends that he developed periodic leg movement disorder while on active duty.  Although the Veteran's claim has been adjudicated under a direct service connection theory of entitlement, the Board notes that the claim may be granted under a secondary service connection theory of entitlement.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board must address theories of entitlement explicitly raised by the claimant and raised by the record).  In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability.  38 C.F.R. § 3.310 (2015).

Upon review, the record indicates that the Veteran has been diagnosed with periodic leg movement disorder during the appeal period.  See a March 2009 letter from L.C., M.D.  Therefore, the element of a current disability has been established.  The Veteran was granted service connection for a lumbar spine disability in a February 2008 rating decision.  Therefore, the element requiring a service-connected disability has been met.  Finally, in the above-mentioned March 2009 letter, Dr. L.C. stated that the Veteran's periodic leg movement disorder is secondary to his service-connected lumbar degenerative disc disease and the association between these two disabilities "has been well described in medical literature."  The record does not contain any evidence suggesting that these two disabilities are not related.  Accordingly, all elements necessary to establish service connection on a secondary service connection theory of entitlement have been met.  



II.  A Left Elbow Disability

The Veteran contends that he developed a left elbow disability while on active duty.  In February 2008, the RO granted service connection for left elbow olecranon bursitis and denied service connection for hydrarthrosis of the left elbow.  Hydrarthrosis is defined as "an accumulation of watery fluid in the cavity of a joint."  See Dorland's Illustrated Medical Dictionary 869 (30th ed. 2003).  In order to establish service connection there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran's service treatment records document that he was treated for hydrarthrosis of the left elbow in January 2006.  An in-service injury or disease has therefore been demonstrated.  Further, although a December 2007 VA examination report indicated that the Veteran did not have swelling in his left elbow, the Veteran provided competent and credible testimony during the April 2015 hearing that he continues to experience the same symptoms that were noted during service.  See Hearing Tr. at 22-23.  As a layperson, the Veteran is competent to report on his observations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

What remains to be established is whether there is a nexus between the Veteran's current disability and his in-service injury or disease.  The Veteran has not been afforded a VA examination to determine the etiology of his left elbow disability.  However, during the April 2015 hearing, the Veteran testified that he has continued to experience left elbow symptomatology following his separation from service.  See April 2015 Hearing Tr. at 23-24.  The testimony of the Veteran was very detailed and established the history of his symptoms since service.  This evidence of continuity of symptomatology tends to establish that the Veteran's current condition is the same condition that was first observed in service.  See Lynch v. Ne. Reg'l Commuter R.R. Corp., 700 F.3d 906, 915 (7th Cir. 2012) ("[E]xpert testimony may be necessary where some special expertise is necessary to draw a causal inference because of its esoteric nature, but that in general the causal sequence can be inferred from circumstantial evidence, expert testimony, or common knowledge."); see also Jandreau, supra.  Significantly, the record does not contain any evidence indicating that the Veteran's left elbow hydrarthrosis is not related to his active duty service.  

As a layperson, the Veteran is competent to testify that he continues to experience the same symptomatology that was noted in service and diagnosed as hydrarthrosis.  His testimony has been very detailed and established the history of his symptoms since service.  This evidence of continuity of symptomatology tends to establish that the Veteran's current condition is the same condition that was first observed in service.  

Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's left elbow hydrarthrosis is related to active service.  Therefore, service connection is granted.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection periodic leg movement and restless leg syndrome is granted.

Service connection for hydrarthrosis of the left elbow is granted. 


REMAND

The record contains the Veteran's VA outpatient treatment records from the Tampa VA Medical Center from November 2010 to May 2011.  However, during the April 2015 hearing, the Veteran testified that he began receiving treatment from the James A. Haley Veterans' Hospital in 2009.  See Hearing Tr. at 6.  The Veteran has also submitted evidence suggesting that he received VA treatment in October 2012.  See a May 2015 Correspondence.  Finally, the Veteran testified that he receives annual physicals from the SOCOM clinic.  Hearing Tr. at 7, 25.  Upon review, these records have not been associated with the claims file.  Accordingly, on remand, the Veteran's outstanding treatment records should be obtained. 

During the April 2015 hearing, the Veteran testified that his disabilities have worsened.  See Hearing Tr. at 5, 9, 10-11.  Because the severity of the Veteran's disabilities is unknown, a new VA examination is warranted.  38 C.F.R. §§ 3.326, 3.327 (2015); Snuffer v. Gober, 10 Vet. App. 400 (1997) (a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination).  

Accordingly, the case is REMANDED for the following action:

1. The AOJ should contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal.  After obtaining any necessary authorization, an appropriate number of attempts must be made to obtain copies of any identified treatment records which have not been previously secured.  The Veteran should also be notified that he may submit evidence or treatment records to support his claim.

The Board is particularly interested any outstanding records of VA medical treatment from the James A. Haley Veterans' Hospital prior to November 2010 and after May 2011, as well as the SOCOM treatment records identified during the April 2015 hearing.  All efforts to obtain these records should be documented in the claims folder.

2.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine whether he has right ear hearing loss as defined by 38 C.F.R. § 3.385.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

3.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected degenerative joint disease, degenerative disc disease, and intervertebral bulging discs of the cervical and thoracolumbar spine.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

4.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected joint disease of the right shoulder with tendonitis.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

5.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected left elbow bursitis.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

6.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected degenerative joint disease of the right and left knees.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

7.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected bilateral pes planus, plantar fasciitis and Achilles calcaneal spurs.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

8.  After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected left thumb laceration residuals.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

9. After completing the action requested in item 1, the AOJ should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected degenerative joint disease of the first metatarsophalangeal joint of the left great toe.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

10.  After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

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 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).



______________________________________________
JAMES D. RIDGWAY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs