Citation Nr: 1630696 Decision Date: 08/02/16 Archive Date: 08/11/16 DOCKET NO. 10-23 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for joint pain, to include fibromyalgia, back pain, and right hip pain. 2. Entitlement to service connection for a right hand disability. 3. Entitlement to service connection for a sinus disability. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for a left knee disability, claimed as left knee effusion and abnormal patellar mechanics, to include as secondary to the Veteran's service-connected right knee disability. 6. Entitlement to an increased rating for chronic patellar tendonitis of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from September 1990 to August 1994. This matter came before the Board of Veterans' Appeals (Board) from September 2009 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction was transferred to the RO in Atlanta, Georgia in November 2012. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing in December 2013. A transcript of the hearing has been associated with the record. The Board remanded the Veteran's appeal in April 2014 for development of the record. The issues of entitlement to service connection for a back disability and a right hip disability have been raised by the record in a September 2015 compensation claim from the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its April 2014 remand, the Board directed that various actions be undertaken by the AOJ. The post-remand record indicates that correspondence was sent to the Veteran at a Georgia address, and examinations were scheduled at the Atlanta, Georgia VA Medical Center (VAMC) and then at the Charleston, South Carolina VAMC. The record also contains various correspondence from personnel within VA attempting to determine the Veteran's correct address. A December 2014 report of general information indicates that the Veteran's current address was in Colorado; examinations were scheduled at an appropriate VA facility. A March 2015 report indicates that the Veteran failed to report for scheduled examinations. More recently, in September 2015, the Veteran submitted a claim electronically, reflecting a North Carolina address. As it is unclear how long the Veteran has resided at this address, and in light of the fact that he apparently changed addresses prior to relocating to the North Carolina address, the Board concludes that the development directed in its April 2014 remand should be undertaken to afford the Veteran an opportunity to identify sources of private treatment and present for examinations necessary to decide the claims on appeal. The action directed in the April 2014 remand included contacting the Veteran and requesting that he provide sufficient information to allow VA to obtain identified private treatment records. This development should be undertaken as described below. The Board also concluded that examinations previously conducted did not provide sufficient evidence to allow it to decide the Veteran's claims, as discussed below. Knee Disabilities With regard to the claims of entitlement to a higher evaluation for the right knee disability and service connection for the claimed left knee disability, the Board noted that the Veteran's hearing testimony suggested worsening of the right knee disability. As such, an examination was directed. With respect to the claim of entitlement to service connection for the left knee disability, the Board concluded that the examination and addendum reports of record failed to address the Veteran's contentions and offered no supporting rationale for the conclusion reached. In this regard, the Board notes that in order to be adequate, an expert opinion must be supported by an analysis that the Board can weigh against other evidence. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). "[M]ost of the probative value of a medical opinion comes from its reasoning," and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board specified that a June 2011 addendum opinion did not provide adequate reasoning as to whether the Veteran's left knee disability was related to his service-connected right knee, noting that it merely consisted of a conclusive statement without any supporting rationale or discussion indicating that the examiner considered the reported onset of a left knee condition subsequent to the Veteran's limping from his right knee disability. The Board indicated that the addendum opinion additionally failed to acknowledge a September 2010 diagnosis of effusion and abnormal patellar mechanics or discuss any causal relation due to the Veteran's right knee disability. The Board additionally found that a March 2011 VA examination was inadequate, as it incorrectly stated that the Veteran's left knee condition had onset in 1990 while the Veteran tried to maintain balance on the deck of his ship. The Board noted that the Veteran had consistently stated, and indeed the March 2011 VA examiner noted elsewhere in his report, that his left knee disability had onset subsequent to his right knee disability and associated limping, as a result of compensating for that injury. The Board pointed out that at no time had the Veteran asserted that his left knee disability was incurred as a result of trying to keep balance on deck of his ship, and indicated that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, the Board directed that on remand, the Veteran should be afforded an adequate examination that rendered an opinion with respect to his left knee condition. Service Connection for Chronic Sinus Disability and Headaches In the April 2014 remand, the Board discussed the necessity for new examinations for the claimed sinus disability and headaches. With respect to the claimed sinus disability, the Board noted that the Veteran was treated in service for sinusitis, and underwent surgery to correct right pansinusitis in March 2000. The Board noted that during a VA examination in September 2010, he reported that the condition had existed since 1992, and that his current sinus problems occured once per year, with each episode lasting for 28 weeks. He reported up to three incapacitating episodes per year, lasting for three days each. He further stated that he experienced headaches and pain during attacks. He noted that he underwent surgery to open his sinuses and drainage and that his response to the procedure and medication had been good, with temporary relief but reoccurrence of blockage. Upon physical examination and X-ray, the examiner stated "examination shows sinusitis present at maxillary and frontal with tenderness," with no nasal obstruction, deviated septum, or purulent discharge from the nose. He further stated "a diagnosis is not possible because normal nasal examination and normal x-ray. There is no finding of bacterial rhinitis." In response to a clarifying question from the RO regarding the notation of sinusitis present at maxillary and frontal with tenderness, the examiner specified that "subjective reporting of pain and tenderness is not always due to sinusitis. The negative x-ray ruled out active sinusitis." The Board noted that certain disorders by their very nature tended to have active versus inactive stages. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). The Board concluded that while the September 2010 examiner specifically noted that the Veteran did not have active sinusitis upon examination, it found that in light of the Veteran's March 2000 surgery for pansinusitis, and his credible and competent statements regarding the current nature, frequency, and severity of his symptoms, including his report that his sinus condition occurs only 28 weeks of the year, it was essential to attempt to schedule him for an examination of his sinus condition during an active stage. See id. The Board additionally concluded that a VA examination was necessary to determine the nature and etiology of the Veteran's headaches. It noted that VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient and competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury, or disease in service, and indicates that the current disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2015); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board noted that the Veteran's December 2013 testimony included his statements that suffered from headaches, and experienced them at least weekly. He specifically noted that he had headaches related to chronic sinus infections, for which he took medication, and that he also experienced headaches separate from his sinus condition. The Board noted that the Veteran is competent to describe his continuous symptoms of headaches from service to the present. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board further observed that the evidence of record demonstrated that the Veteran was treated for headaches in service. Specifically, an October 1990 service treatment record reflects that the Veteran complained of a headache lasting two days and nasal congestion with yellowish mucous. In October 1992, he suffered a headache after being involved in an altercation. In July 1994, the Veteran was treated for frontal headache, with mild photophobia, while another July 1994 treatment record shows that the Veteran complained of headaches and was prescribed rest and medication. It concluded that, as the evidence of record tended to show that the Veteran's headaches may have had onset in or be related to service, the Veteran should be provided with a VA examination to determine the nature and etiology of this disability. Service Connection for Right Hand Disability The Board also concluded that a new VA examination was necessary with respect to the Veteran's right hand. The Board noted that upon soliciting a history and examination of the Veteran including x-ray, a September 2010 VA examiner rendered no diagnosis, stating that "there is negative x-ray and negative examination of the wrist and hand save for slight decrease of motion of the finger joints, bilateral." In a September 2010 addendum, the examiner elaborated that the "decrease of motion o[f] all the fingers on both hands alone without any radiographic findings is not enough to pinpoint a specific diagnosis. Further diagnostic study merits consideration." The Board observed that although the examiner stated that he could not render a specific diagnosis, notably, he relayed findings of a decrease in motion of the finger joints and recommended further diagnostic study. Accordingly, the Board determined that the September 2010 VA examination is inadequate for proper adjudication of the claim as it specifically stated further medical study was needed and additionally failed to provide an opinion with respect to any causal relationship between the Veteran's decreased range of motion and his active service. In light of its determination that the development described in the April 2014 remand should be carried out, the case is REMANDED for the following action: 1. Contact the Veteran and request that he specifically identify any private medical providers who have treated him for his knees, back, hips, fibromyalgia, joint pain, chronic sinus condition, headaches, and right hand. He should be requested to provide completed release forms (VA Form 21-4142) authorizing VA to request copies of any treatment records from such medical providers, to specifically include Memorial Hospital in Savannah, Georgia, Candler Hospital, Georgia, and additional private treatment providers identified during the Veteran's December 2013 Board Hearing testimony, including: (a) Private treatment received in San Antonio, Texas; (b) Private treatment of his spine from Dr. V; (c) Private treatment of his hip and back from Dr. F; (d) Private treatment for fibromyalgia from Dr. M.D. and rheumatologist Dr. C.C.; and (e) Private treatment and surgery for chronic sinus condition. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After completing the above development, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee disability. The claims file, including copies of the April 2014 Remand and this Remand, must be provided to the examiner for review. After conducting any appropriate and required testing, the examiner must describe in detail the current signs, symptoms, and manifestations of the service-connected right knee disability. The examiner must explain the rationale for any opinion rendered. 3. After obtaining and associating any identified and relevant treatment records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his left knee disability. The claims file, including copies of the April 2014 Remand and this Remand, must be provided to the examiner for review. All necessary special studies or tests should be accomplished. The examiner is additionally asked to accomplish the following: (a) Interview the Veteran as to the relevant history of his current left knee disability and include a detailed description of that history in his or her report. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's left knee disability is related to the Veteran's active service, to include as secondary to his service-connected right knee disability. (c) Provide an opinion as to whether it is at least as likely as not that the Veteran's left knee disability was aggravated beyond its natural progression by his service-connected right knee disability. If the examiner finds that the left knee disability was aggravated, but not caused, by the right knee disability, he or she should, to the extent possible, indicate the baseline level of severity of the left knee disability and the extent of any aggravation. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After obtaining and associating any identified and relevant treatment records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any right hand disability, to include the fingers and wrist. The claims file, including copies of the April 2014 Remand and this Remand, must be provided to the examiner for review. While review of the entire claims file is required, particular attention is invited to the following records: (a) An August 1991 service treatment record noting treatment of pain and swelling in the right hand subsequent to falling down three days prior and rendering a diagnosis of soft tissue injury; (b) A December 1993 service treatment record noting complaint of pain to the right hand for two weeks post trauma and referring the Veteran to the base medical clinic for further evaluation; and (c) The September 2010 VA examination noting decreased range of motion in the fingers, bilaterally. All necessary special studies or tests should be accomplished. The examiner is additionally asked to accomplish the following: (a) Interview the Veteran as to the relevant history of his current right hand condition and include a detailed description of that history in his or her report. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any identified right hand disability or decreased range of motion had onset during or was caused by the Veteran's active service. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After obtaining and associating any identified and relevant treatment records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any identified sinus condition and headache disability. The claims file, including copies of the April 2014 Remand and this Remand, must be provided to the examiner for review. While review of the entire claims file is required, particular attention is invited to the following records: (a) Service treatment records dated October 1990, October 1992, and July 1994 noting complaint of headache; (b) Service dental health questionnaires dated September 1990 and January 1994 in which the Veteran answered "yes" to having ever had or currently having sinus problems; (c) A May 1993 service treatment record noting sinus congestion and headache and rendering diagnoses of sinusitis and bronchitis; (d) An August 1993 service treatment record noting pain and bruising to the right forehead and a diagnosis of frontal hematoma; (e) A March 2000 private treatment record documenting the Veteran underwent endoscopic right anterior ethmoidectomy and middle meatal antrostomy, with pre and postoperative diagnoses of right pansinusitis, and noting severe right frontal and orbital headaches; and (f) The September 2010 VA examination report for chronic sinus condition. All necessary special studies or tests should be accomplished. The examiner is additionally asked to accomplish the following: (a) Interview the Veteran as to the relevant history of his sinus condition and headaches and include a detailed description of that history in his or her report. (b) Provide an opinion as to whether the Veteran has a current chronic sinus condition. In making this determination, consider whether a sinus condition, if chronic in nature, may tend to have active versus inactive stages. (c) Provide an opinion as to whether the Veteran has a current headache condition. (d) With respect to any diagnosed sinus or headache condition, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the conditions had onset during or were caused by the Veteran's active service. (e) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any headache condition is related to the Veteran's chronic sinus condition. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After ensuring that the requested actions are completed, readjudicate the claims on appeal. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate 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). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).