Citation Nr: 1752674 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-08 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for residuals of a right thumb injury, claimed as a right thumb condition. 2. Entitlement to service connection for right lower extremity radiculopathy, claimed as a right lower extremity condition, to include as secondary to service-connected lumbar spine disability. 3. Entitlement to service connection for right piriformis syndrome, claimed as a right lower extremity condition. 4. Entitlement to service connection for a right knee patellofemoral pain syndrome (PFPS), claimed as a right lower extremity condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from September 2005 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that denied service connection for a right leg condition. In February 2016, the Board remanded the appeal for additional development. The Board has expanded the lower right extremity disability claim to encompass piriformis syndrome and right knee PFPS based upon the evidence of record. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability). These issues are listed as separate issues on the title page. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012) (VA is free to dismember a claim and adjudicate it in separate pieces); Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current right thumb pain is a residual disability related to his in-service right thumb injuries. 2. The evidence is at least evenly balanced as to whether the Veteran currently has right lower extremity radiculopathy associated with service-connected lumbar strain. 3. The evidence is at least evenly balanced as to whether the Veteran currently has right piriformis syndrome originating with a documented April 2007 back injury. 4. The evidence is at least evenly balanced as to whether the Veteran has right patellofemoral pain syndrome due to a documented July 2006 right knee injury. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for residuals of a right thumb injury are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right piriformis syndrome are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right patellofemoral pain syndrome are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.303(b), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities, including arthritis, as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A necessary element for establishing any service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). The Board recognizes that a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Evidence generated prior to the claim must also be considered in determining a current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition to the regulations noted above, service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (a) Right thumb disability January 2008 service treatment records (STRs) reflect that the Veteran was treated for a right thumb contusion. He recently injured his right thumb by hitting it on a door. He complained about 5/10 pain with throwing actions. Clinical examination revealed tenderness to palpation. He was given a splint and referred to the occupational therapy (OT) clinic. August 2008 STRs reflect that the Veteran recently reinjured his right thumb. Clinical examination showed that the Veteran had right thumb pain upon motion. Stability was normal. The clinician provided medication and placed an OT referral. He listed a diagnosis of joint pain, fingers. July 2010 VA treatment records include the Veteran's reports about right thumb pain beginning with a 2007 injury. Currently, he complained about being unable to write for an extended period due to right thumb pain and cramping. He had severe right thumb pain with exertive activity. Clinical evaluation was significant for right thumb pain with resistance against extension and flexion. The clinician assessed right thumb pain and referred the Veteran for an X-ray study and orthopedic clinic consultation. A subsequent July 2010 VA treatment note reflects that the right hand X-ray was normal. September 2010 VA OT clinic records show that the Veteran complained about mild right thumb pain with activity. OT exercises were performed and a thumb support brace was ordered. December 2010 right hand X-ray report was negative. In May 2016, the Veteran was afforded a VA examination. The examiner declined to list a diagnosis. The Veteran reported that he jammed his right thumb in a door and had grip problems two months later. He sought medical attention. Currently, he complained about occasional shooting pain in his thumb. He had a pain at the base of his right thumb when holding a pen. Clinical evaluation showed a good range of motion (ROM) without pain. There were no gaps between right thumb pad and fingers or the finger and proximal transverse crease of the hand on maximal finger flexion. There was no evidence of pain with use of the hand or localized tenderness. The Veteran performed repetitive use testing without any motion loss. Right hand muscle strength was complete. X-rays did not reveal any abnormal findings. In July 2016, the Veteran reported that he had right thumb pain and painful motion. In this case, the above evidence is at least evenly balanced as to whether the right thumb pain symptoms exhibited by the Veteran are due to an injury in service. STRs document two right thumb injuries. Within a year of separation, the Veteran again sought medical attention for right thumb pain and attributed the etiology to a 2007 in-service injury. His reports of initial right thumb injury and residual pain are competent and credible. Jandreau, 492 F.3d at 1377, n. 4. The Board has considered the absence of current diagnosis to corroborate the subjective reports of right thumb pain from the 2010 VA right hand X-rays and May 2016 VA examination report. The question of whether symptoms such as pain could constitute "disability" for purposes of the VA compensation laws and regulations in the absence of a specific diagnosis is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). In Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. Thus, for example, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury." Id. In contrast to Sanchez-Benitez, here the factual background indicates that the post-service right thumb pain is generally associated with the in-service right thumb injuries. The Veteran has documented in-service right thumb injuries. He filed a claim and sought medical care almost immediately following service. The Board also points out that the Court has recognized any physical defect as within the purview of a current disability for VA compensation purposes. Allen v. Brown, 7 Vet. App. 439, 444-41; see also 38 C.F.R. § 4.1. Facially, the Veteran's reports of right thumb pain that interfere with activity would constitute a physical defect resulting in decreased earning capacity. Id. In light of the above, the Board does not consider the 2010 VA X-ray reports and May 2016 VA examination report persuasive to show that the Veteran's reports of right thumb pain do not constitute a current disability. In this regard, the Board notes that there is a case pending before the United State Court of Appeals for the Federal Circuit addressing this precise issue. See Saunders v. Shulkin, No. 17-1466 (Notice of Docketing filed Jan. 1, 2017). In the absence of definitive guidance on this issue, the Board will not deny the claim based on lack of current disability due to the lack of a specific diagnosis. In sum, the factual background includes competent and credible evidence concerning in-service right thumb injuries and residual thumb pain following the injury such that the Veteran has right thumb disability due to in-service injury. Entitlement to service connection for residuals of a right thumb injury is therefore warranted. (b) Right lower extremity radiculopathy, to include as secondary to service-connected lumbar spine disability, and Right Piriformis Syndrome. April 2007 STRs reflect that the Veteran sought emergency treatment for low back pain and right sided sciatica symptoms. He denied any specific injury. The clinician noted that the Veteran performed a significant amount of heavy lifting at work. The Veteran also described intermittent paresthesias to the right knee without any associated weakness. He stated that his symptomatology was worse with prolonged sitting. Medication had been ineffective. Following evaluation, the clinician reported that the Veteran had no cord compression or cauda equine symptoms. He indicated sciatica was the most consistent diagnosis. He advised the Veteran to modify his activities, among other things. The clinical impression was listed as sciatica. May 2007 STRs reflect that the Veteran reported tingling sensations in his right posterior thigh. Clinical evaluation showed straight leg raise (SLR) was negative and hamstring contracture test was positive. Neurological evaluations of the lower extremities were normal in all tested aspects. Tenderness over the gluteus attachments to right iliac crest and positive piriformis sign was found. X-ray and magnetic resonance imaging (MRI) study of the lumbar spine revealed normal findings. The clinician assessed buttock strain of the right gluteus maximus and recommended physical therapy (PT) exercises for the piriformis, among other muscles. He instructed the Veteran to follow up at the chiropractic clinic. September 2007 STRs reflect that the Veteran's back pain improved with stretching exercises. July 2009 Report of Medical History for separation reflects that the Veteran endorsed having recurrent back pain and numbness or tingling. He elaborated that he had low back pain and numbness in the back of his right leg from April 2007 to the present. In December 2009, the Veteran was afforded a VA general medical examination. He reported developing back pain during work that also included right sciatic pain and numbness. He reported that his right side still felt tight and he had some knee pain above the hamstring. He could move ok, but prolonged sitting and positioning himself off of the right buttocks caused pain. The examiner assessed mechanical low back pain. In September 2013, the Veteran had VA lumbar spine and neurological examinations with the same examiner. The VA examiner provided a diagnosis of lumbar strain, and noted a radicular component specific for moderate involvement of the sciatic nerve. According to the peripheral nerve examination, the VA examiner provided a diagnosis of lumbar radiculopathy; however, the VA examiner indicated that all the peripheral nerves of the lower extremity were normal. The VA examiner explained that the Veteran has mild sensory deficits in the right lower extremity, but no gross abnormal neuromuscular dysfunction. Following the September 2013 VA examination, service connection for the Veteran's lumbar spine disability was changed from "mechanical low back pain with radicular symptoms" to "lumbar strain." In March 2014, the Veteran reported that exertive activities were a regular part of job duties during service. In 2006 and 2007, he started developing lower back pain with radiating symptoms down the back of his right leg. He recalled being diagnosed with sciatica. Following service, he continued to experience radiating pain shooting down throughout his leg. He expressed concern about an inconsistency within the recent VA examination report where the VA examiner noted radiculopathy symptoms, but assessed the right sciatic nerve as normal. May 2016 VA back examination report did not assess a separate neurological disorder associated with the service-connected lumbar strain. The neurological examination was normal with the exception of a positive right sided straight leg raise (SLR) test. The examiner noted the reports of right leg pain. However, she indicated the objective findings, including imaging studies, do not support a radiculopathy diagnosis and recommended EMG. June 2016 VA EMG study was inconclusive since testing could not be completed. In October 2016, the Veteran submitted a medical article on Piriformis Syndrome. It identified buttocks trauma or overuse of the piriformis muscle leading to inflammation of the soft tissue as common etiologies. The most common symptom was increasing pain with sitting for longer than 15 to 20 minutes. In October 2016, the Veteran's private physical therapist, S.K., authored a letter in support of sit/ stand workstation accommodations. She identified compression of the sciatic nerve by the piriformis muscle as the cause of the Veteran's symptoms. Regarding right lower extremity radiculopathy, the Board finds that the May 2013 VA examination report provided sufficient evidence of current right lower extremity radiculopathy attributable to service-connected lumbar strain. As noted, the threshold for current disability is low and includes any diagnosis during the pendency of the appeal. McClain, supra. The assessment of radiculopathy on its face provides sufficient evidence of a nexus to the service-connected lumbar strain. 38 C.F.R. § 3.310(a). Service connection for right lower extremity radiculopathy, secondary to service connected lumbar strain, is therefore warranted. Regarding piriformis syndrome, April 2007 STRs document symptomology consistent with the medical article submitted in October 2016, namely macro trauma to the buttocks and pain with prolonged sitting. The October 2016 report by S.K. establishes a current diagnosis. The remaining issue is a nexus. The Court has indicated that treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). The above evidence reflects that, when reasonable doubt is resolved in favor of the Veteran, there is sufficient evidence of a nexus between the Veteran's right piriformis syndrome and service, to include the medical literature submitted, to warrant service connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (c) Right knee PFPS July 2006 STRs reflect that the Veteran hit his right knee cap on a fuel tank. After bending and sitting, it hurt. He complained about swelling. Clinical evaluation showed swelling at the medial patella in addition to early ecchymosis. Pain was elicited during ROM testing. The clinician assessed right knee pain with a suspected deep patella contusion. She restricted the Veteran to light duty for the next two weeks. In his July 2009 Report of Medical History, the Veteran endorsed having knee trouble. He identified it as the right knee from 2006. July 2010 VA primary care records reflect that the Veteran complained about right knee pain from an injury where his knee hit a large fuel tank. He complained about continued "clicking inside knee" with jogging and extension. He could not run without pain. The examiner noted a history for Osgood-Schlater bilaterally, but that it had not been symptomatic for a few years. Clinical examination was notable for a slight click with McMurray's test. December 2010 X-ray of the right knee was negative. In May 2016, the Veteran was afforded a VA knee and lower leg condition examination. The examiner noted the Veteran's report that he hit his right patella on a tank. He developed pain underneath his right kneecap with extension. He had occasional medial knee buckling. He experienced pain below the knee and under the kneecap with walking. He described it as a grinding ache. He had problems sitting and with stairs. The examiner declined to list a diagnosis. Clinical examination of the right knee was normal. The examiner assessed bilateral shin splints with occasional symptoms to the right shin. X-rays of the knees showed mineralization along the distal patellar tendon that was likely due to remote injury. The X-rays impression was listed as no acute osseous abnormalities. However, the examiner stated that the Veteran may have right patellofemoral pain syndrome (PFPS). She cited an Up to Date article listing direct trauma as an established cause for PFPS. The Board finds the evidence of record sufficient to warrant service connection for right PFPS. STRs document a right patellar injury and the Veteran complained about right knee pain shortly after service. The May 2016 VA examination report includes a right knee X-ray study listing an abnormality due to remote injury. The VA examiner's medical treatise cite indicates a PFPS diagnosis is likely appropriate as it lists direct trauma as an established cause for PFPS. The Board resolves any uncertainty as to the validity of the PFPS diagnosis expressed by the May 2016 VA examiner in favor of the Veteran to find a current disability for right PFPS and nexus to the 2006 right knee injury. Service connection for right PFPS is therefore warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of a right thumb injury is granted. Service connection for right lower extremity radiculopathy is granted. Service connection for right piriformis syndrome is granted. Service connection for right knee PFPS is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs