Citation Nr: 1646229 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 07-24 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for arthritis of the neck. 2. Entitlement to service connection for a bilateral shoulder disability. 3. Entitlement to service connection for arthritis of the back. 4. Entitlement to service connection for a left ankle disability, to include as secondary to residual limitation of motion status post distal tibiofibular area fracture of the right ankle. 5. Entitlement to service connection for anxiety, to include as secondary to service-connected disabilities. 6. Entitlement to service connection for service connection for erectile dysfunction. 7. Entitlement to an initial evaluation in excess of 40 percent for limitation of extension of the left knee. 8. Entitlement to an initial evaluation in excess of 40 percent for limitation of extension of the right knee. 9. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee. 10. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee. 11. Entitlement to a rating in excess of 20 percent for residual limitation of motion of the right ankle status post distal tibiofibular area fracture. 12. Entitlement to a disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to August 1978. The matters of entitlement to service connection for arthritis of the neck and service connection for a bilateral shoulder disability (issues 1 and 2 above) come before the Board of Veterans' Appeals (Board) by order of the United Stated Court of Appeals for Veterans Claims (hereinafter 'the Court') on April 8, 2010, which, in pertinent part vacated a December 2008 Board decision as to these two issues on appeal and remanded the case for additional development. The issues initially arose from a June 2006 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for arthritis of the neck, an unspecified condition of the shoulder area, and for arthritis in both knees. In a May 2007 rating decision the RO awarded service connection for chondromalacia of the bilateral knees, with an initial evaluation of 10 percent. In a May 2008 rating decision, the RO (1) denied service connection for a left ankle disorder, (2) denied entitlement to service connection for an upper back disorder, and (3) denied a disability rating in excess of 10 percent for residual limitation of motion, status post distal tibiofibular area fracture of the right ankle. In a June 2008 notice of disagreement, the Veteran disagreed with the decision. In a March 2009 rating decision, the RO (1) granted service connection for limited extension, left knee with an evaluation of 10 percent effective November 6, 2008, (2) granted service connection for limited extension, right knee with an evaluation of 10 percent effective November 6, 2008, (3) increased to 20 percent, effective November 6, 2008, the evaluation of residual limitation of motion, status post distal tibiofibular area fracture of the right ankle, (4) continued a 10 percent evaluation for chondromalacia of the left knee, (5) continued a 10 percent evaluation for chondromalacia of the right knee, (6) denied service connection for erectile dysfunction with loss of use of the sexual reproductive system, (7) denied service connection for an anxiety disorder, and (8) continued a denial of service connection for a left ankle condition. In a March 2009 notice of disagreement, the Veteran noted that he disagreed with the March 2009 decision, and wished to appeal all issues addressed in it. In a March 2010 rating decision, the RO provided an increased evaluation of 40 percent for limited extension of the right and left knees, effective November 6, 2008. As this does not represent the highest available rating for limited extension of the knees, the issues remain on appeal. Regarding the issues of entitlement to service connection for arthritis of the neck and service connection for a bilateral shoulder disability, in November 2008 the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) a transcript of the hearing is of record. The VLJ who presided over the November 2008 Board hearing is no longer with the Board. However, the Veteran testified on all of the issues currently under appeal in a July 2016 videoconference hearing before the undersigned VLJ. A transcript is included in the claims file. The issues of entitlement to increased ratings for extension and flexion of the right and left knees, entitlement to an increased rating for a right ankle disability, and entitlement to service connection for left ankle, anxiety, and erectile dysfunction disorders, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed arthritis of the neck as a result of his active service. 2. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed a bilateral shoulder disability as a result of his active service. 3. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed arthritis of the back as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for arthritis of the neck are met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 2. The criteria for a grant of service connection for a bilateral shoulder disability are met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 3. The criteria for a grant of service connection for arthritis of the back are met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that '[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board'). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran asserts he injured his cervical and thoracolumbar spine, as well as his shoulders, due to injuries sustained while being an active paratrooper in service. His DD-214 indicates he has the parachute badge. Service treatment records (STRs) show the Veteran was seen for a bruised neck in December 1976. In an August 1977 STR, the Veteran was treated for a riser burn on his neck. Separation examination and medical history report dated in July 1982 are negative for complaints or diagnosis of a neck, shoulder, or spine disorder. In a January 2007 letter, the Veteran's treating physician, Dr. H., stated the Veteran has injured and chronic medical conditions that are very likely to be the result of injuries sustained while on active duty. He noted the years spent running on pavement in boots combined with airborne operations take a severe toll on the body. In this situation, the physician found it contributed to his chronic joint pains and arthritis, which is especially severe in his knees. In a May and July 2007 letters, Dr. H. stated the Veteran has injured and chronic medical conditions that are very likely to be the result of injuries sustained while on active duty. He noted the years spent running on pavement in boots combined with airborne operations take a severe toll on the body. In this situation, the physician found it contributed to his chronic joint pains and arthritis, which is especially severe in his knees. This has also caused him to have joint pains involving the neck and upper back, as well as both shoulders. In an October 2008 hearing, the Veteran testified that he did 10 parachute jumps during active service. The Veteran reported some hard falls and that more than once the wind was blowing so hard that the parachute drug him out of the drop zone. He stated he had 75 to 100 pounds of gear carried on him when he exited the aircraft. The Veteran reported that he sought treatment for riser burn on his neck, but sought no other treatment. The Veteran reported ongoing pain in his neck and shoulder regions since discharge from service. He stated that while on active duty he had stiffness of the neck and shoulders, and sometimes pin in the arms. He asserted he has the same pain to include pain in the upper area of the shoulder and back and neck. A January 2010 private x-ray report showed findings of mild glenohumeral arthritis of the right shoulder. In a February 2010 VA progress note, the physician noted that in his opinion the Veteran is 100 percent disabled due to traumatic and degenerative arthritis involving primarily his spine as a result of his years of service as a paratrooper. In a September 2010 letter, Dr. H. stated that the Veteran suffers from severe arthritis of the lumbar, thoracic, and cervical spine with disc bulge which compresses the anterior thecal sac of the lumbar area and on the nerve roots of the cervical spine and the thoracic spine and this physician linked these disabilities to the Veteran's service as a paratrooper. During an April 2011 VA examination, the examiner reported diagnoses of degenerative disc disease of the cervical spine, bilateral shoulder impingement syndrome, and degenerative joint disease of the bilateral acromioclavicular joints. The examiner determined it is less likely than not that the Veteran has any neck or shoulder condition related to him having been in the service, citing the lack of objective evidence supporting service connection. During a July 2016 videoconference Board hearing, the Veteran testified that he was a paratrooper for two years in service. He stated that reported he injured his neck and was treated for riser burns in service. The Veteran again reported an injury where he was pulled across the drop zone by his parachute with the pulling on his back and shoulder. He stated that he had been pulled by his parachute multiple times, but was only once treated for riser burn. He reported he would run on pavement in boots and do a lot of marching with a ruck sack which was strenuous activity on his neck, back and shoulders. The Veteran asserted he sought medical treatment in service for pain in his neck and that he continued to have pain throughout his time in service. He claimed that although there was no medical treatment between service and 2000, he self-medicated his pain. Because the April 2011 VA examiner failed to address the Veteran's reported injuries in service, as well as the indications of jump injuries in the service treatment records, the Board finds the April 2011 VA examiner's negative nexus opinion no longer adequate and therefore, cannot serve as the basis of a denial of entitlement to service connection. As there were diagnoses of neck, back, and bilateral shoulder disorders during the appeals period and the remaining probative evidence of record is that it is related to an in-service injury, the Board finds that resolving reasonable doubt in the Veteran's favor, entitlement to service connection for back, neck, and shoulder disabilities is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). ORDER Entitlement to service connection for arthritis of the neck is granted. Entitlement to service connection for a bilateral shoulder disability is granted. Entitlement to service connection for arthritis of the back is granted. REMAND The Veteran underwent VA examination in April 2008 for his claim for service connection of a left ankle disorder. Although the examiner indicated the Veteran's left ankle was less likely than not due to service, the examiner gave no rationale for this opinion, and therefore, the opinion is inadequate. The Veteran underwent an additional VA examination in March 2010. After a physical examination, the examiner found there is no objective evidence or data to suggest the Veteran's left ankle condition is related to any of his other joints for which he is service-connected. A January 2011 general medical examination indicated the Veteran walks with an antalgic gait. The Veteran asserts that he had to overcompensate for his right ankle disability and this has caused his current left ankle disorder. As the March 2010 VA opinion fails to address the Veteran's contention, the Board finds the opinion is also inadequate and an additional VA opinion is necessary. The Veteran asserts he has erectile dysfunction due to his now service-connected spine disability. The Board finds a VA examination and opinion is necessary to determine whether the Veteran has an erectile dysfunction, and, if so, whether or not it is related to his service-connected disabilities. The Veteran underwent a VA examination in March 2010 for his claimed psychiatric disorder. A March 2010 VA examiner found the Veteran did not have a current psychiatric diagnosis. The examiner noted that on the interview, there were significant inconsistencies in the Veteran's report of symptoms during the examination as well as inconsistencies with his report and what has been reported in depression screening. During the July 2016 hearing, the Veteran testified that the medication he takes for his back has caused him to be anxious. As the Veteran has not been evaluated for a psychiatric disorder since March 2010, and his medication has been changed multiple times since that time, the Board finds a new VA psychiatric examination is necessary. During a July 2016 hearing, the Veteran testified that his right knee, left knee, and right ankle disabilities are worse than when last examined. Therefore, the issues are remanded for a new VA examination. Two or more issues are inextricably intertwined if one claim could have significant impact on the other. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Here the Veteran's claim of entitlement to TDIU is inextricably intertwined with his service connection and increased rating claims. Development of the Veteran's claims for an increased disability rating may impact his claim for TDIU; therefore, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Send notice to the Veteran requesting that he identify any additional private or VA treatment records. Request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. If the Veteran is receiving regular VA treatment, obtain the updated medical records and associate them with the claims file, to include and VA treatment from February 2015. 2. Thereafter, schedule the Veteran for a VA orthopedic examination. The examiner should review the Veteran's claims folder in Virtual VA and VBMS. The VA examiner is asked to provide the current nature and severity of the service-connected right knee, left knee, and right ankle disabilities, to include complete range of motion testing. The appropriate DBQs should be completed. Additionally, the VA examiner is asked to render diagnoses and offer the following opinions: a. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left ankle disorder was caused by service or his service-connected disabilities? b. Is it at least as likely as not (a fifty percent probability or greater) that the left ankle disorder was aggravated (permanently worsened beyond its natural progression) by his service-connected disabilities? A complete rationale for all opinions should be provided. 3. Schedule the Veteran for an appropriate VA examination. The examiner should review the Veteran's claims folder in Virtual VA and VBMS. Initially, the examiner should identify whether the Veteran has a current diagnosis of erectile dysfunction (ED). Second, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any identified ED was caused by the Veteran's service-connected disabilities, to include treatment for his now service-connected back disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. Schedule a VA mental health examination. The examiner should review the Veteran's claims folder in Virtual VA and VBMS. Following a review of all relevant evidence from the electronic file, to include in VBMS and Virtual VA, an interview with the Veteran, the VA examiner is asked to offer the following opinions: a. Does the Veteran have a current psychiatric disorder? b. If so, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's acquired psychiatric disorder was caused by service or his service-connected disabilities? c. Is it at least as likely as not (a fifty percent probability or greater) that the acquired psychiatric disorder was aggravated (permanently worsened beyond its natural progression) by his service-connected disabilities? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. Thereafter, readjudicate the Veteran's claims, to include his claim of entitlement to TDIU. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the requisite period of time within which 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). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs