Citation Nr: 1754435	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-21 750	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a back disability. 

2. Entitlement to service connection for a right hip disability.  

3.  Evaluation of osteoarthritis of the right knee, currently evaluated as 10 percent disabling.

4.  Evaluation of left knee patellofemoral pain syndrome, currently evaluated as 10 percent disabling.



REPRESENTATION

Appellant represented by:	Bryan J. Held, Agent




ATTORNEY FOR THE BOARD

B. Bodi, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1976 to December 1977.  

This matter is before the Board of Veterans Appeals (Board) on appeal from May 2011 and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina and Roanoke, Virginia, respectively.   Jurisdiction is currently held by the RO in Columbia, South Carolina.

The issues of increased ratings for left knee patellofemoral pain syndrome and osteoarthritis of the right knee are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  A back disability was not manifest in service or within one year of separation.

2.  A right hip disability was not manifest in service or within one year of separation.


CONCLUSIONS OF LAW

1.  A back disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

2.  A right hip disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Additionally, the Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits.

II.  Service Connection

The Veteran served as a U.S. Army radio operator and paratrooper.  He contends that his current thoracolumbar spine and right hip disorders are caused by parachute jumps with full gear.  The RO received the Veteran's claim for service connection for these disorders in January 2013.  In a March 2014 statement, the Veteran contended that he did all of the jumps with and without equipment while serving with the 82nd Signal Corps in the Army.  

To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Service connection may also be established for arthritis manifesting to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. 3.307, 3.309(a).  

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R.  § 3.303(b). 

Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

III.  History

The Veteran's February 1976 entrance and August airborne medical history questionnaires and examinations showed clinically normal spine, other musculoskeletal, and the lower extremities.  The Veteran denied any recurrent back pain.   During active service, the Veteran was examined and treated for knee disorders including periods of restricted duty for chronic right knee ligamentous hyperlaxity.  On March 1977 dental patient history questionnaire, the Veteran denied a history of arthritis.  A November 1977 VA examination indicates the Veteran was clinically normal for spine, other musculoskeletal, as well as the lower extremities except for the right knee.  

A VA primary care note from March 1999 indicates that the Veteran had no spinal pain or tenderness.  A VA treatment record from September 2003 the Baltimore VA Medical Center (VAMC) indicates impressions of chronic arthritis in knees, neck, left shoulder.  The Veteran underwent a state disability examination in May 2003.  There were no findings of abnormalities of the back or knees.  The Veteran had a stable gait with a full range of motion.  

A VA treatment record from January 2007 indicates the Veteran requested a back brace.  The Veteran reported that he injured his knees while in the service and currently had arthritis with back and bilateral knee pain and a meniscus tear.  

The Veteran was afforded VA contract examinations in May 2013.   The examiner noted the Veteran's report of an onset of pain in the right hip while walking in 2003.  The Veteran reported intermittent pain at that time but now constant pain ranging from about two to eight out of ten.  Sometimes his right leg gets tingly and numb.  The examiner acknowledged the Veteran's report of 22 jumps in the airborne unit.  Imaging studies revealed slight narrowing in the hip joint in the superior direction, but were otherwise negative.  There were impressions of degenerative joint disease (DJD) of the right hip.  The examiner reviewed the claims file and opined that it is less likely than not that the Veteran's hip condition was incurred in or caused by the claimed in-service injury, event, or disease.  He also opined that the right hip condition is not related to military service because there was no evidence of an injury or onset of manifestations of the disorder in service or for many years after service.  

The Veteran's contemporaneous thoracolumbar spine examination revealed thoracolumbar pain at rest with decreased range of motion upon repetitive range of motions.  X-rays were abnormal.  They revealed impressions of slight retrolisthesis L2-3 and L3-4.  They also revealed a small Schmorl's node superior and inferior endplates L5 and inferior endplate L4 and question L3.  They were otherwise negative.  The examiner opined it is less likely than not that the low back condition is related to service.  He based this assessment on the physical examination, review of the claims file, and highlighted the lack of evidence regarding its onset in the STRs and VA treatment records.  

An orthopedic consult from the Richmond VAMC from July 2013 shows that the Veteran reported some right hip pain and back pain.  In terms of the right hip pain, the Veteran reported that this occurs immediately and will give him a shooting sensation at the groin.  He noted that during these episodes his pain will be twelve out of ten on the pain scale.  Exacerbating factors included twisting and walking for long periods of time.  His back pain was mainly right-sided along the paraspinals and will shoot towards the lumbar spine area.  Upon physical examination, there were impressions of tenderness to palpation over the right paraspinal muscles of the spine, beginning approximately L1 level and extending downward.  A treatment record from October 2013 indicates that he has occasional low back pain.  Another October 2013 treatment record from the Richmond VAMC indicates lumbago and bilateral knee arthralgia.  A February 2014 VA treatment record indicates the Veteran reported pain in his hip and his back.  


A VA treatment record from the VA treatment record from the Myrtle Beach Outpatient Clinic in July 2015 indicates impressions of chronic low back pain and right hip pain.  A January 2016 treatment record indicates there were impressions of lower back pain.  A primary care note from May 2016 indicates low back pain dating back to January 2016.  It also indicates chronic low back pain from July 2015.  Last, it indicates hip pain from July 2015.  An August 2016 treatment record indicates x-rays were taken, which revealed mild lower lumbar facet arthropathy.  He otherwise had an unremarkable lumbar spine. There were also impressions of mild degenerative change in the right hip.  There were also impressions of mild bilateral patellofemoral arthropathy.  

IV.  Analysis

The Veteran competent to report pain and the timing of the onset of these manifestations.  He is also competent to report what he has been told by a physician.  The Veteran reports that he has been told he has arthritis.  The Board finds these reports credible.

The Veteran's STRs are clinically normal for the back and hip, and do not contain any indication of a disease or injury related to his back or hips.

VA treatment records indicate consistent impressions of arthritis, spinal stenosis, slight narrowing in the hip joint in the superior direction, and hip pain.  They indicate that back pain went from occasional to worsening.  An August 2016 treatment record indicates x-rays were taken, which revealed mild lower lumbar facet arthropathy, as well as degenerative changes of the right hip.

The May 2013 VA examiner found impressions of some back and hip disability, as confirmed by x-ray, but opined that the Veteran's thoracolumbar spine and hip pain are less likely than not related to service because the manifestations did not arise until many years after service.

Here, the most probative evidence are the STRs, the opinion of the May 2013 examiner, and the VA treatment records indicating the Veteran did not incur a back or hip injury in service, and arthritis was not manifested for many decades after discharge.  Indeed, the STRs are clinically normal.  They do not show an event, disease, or injury in service.  This is consistent with the findings of the May 2013 VA examinations indicating it is less likely than not that both disabilities are related to service.  The Board finds the examiner's opinion to be highly probative.  While the Veteran is competent to report a history of performing jumps and subsequent back and hip pain, his contentions are outweighed by the contemporary medical evidence of record indicating the onset of back and hip disability was many years removed from discharge.  In addition, arthritis was not identified for several decades after discharge.  Here, there are not the characteristic manifestations necessary to identify a chronic disease entity in service.  There is no probative evidence to the contrary.  Consequently, service connection for a back disability and a right hip disability is not warranted.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  The Veteran has been granted service connection for right and left knee disabilities.  However, neither the Veteran nor the record raises an issue of service connection on a secondary basis.  

In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).






ORDER

Entitlement to service connection for a back disability is denied.

Entitlement to service connection for a right hip disability is denied.


REMAND

A remand is necessary for additional development.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range-of-motion testing be conducted whenever possible in cases of painful disabilities.  The final sentence of that section provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing. . ."  The Court found that a VA examination of the joints must, wherever possible, include the results of the range-of-motion testing described in the final sentence of § 4.59.  

Here, the most recent May 2013 knee examination by QTC Medical Services does 
not comply with 38 C.F.R. § 4.59 and Correia because it does not include range-of
motion testing on active, passive, weight-bearing, and non weight-bearing, or a statement to the effect that such testing was not possible or unnecessary in this case, such that the effects of pain on the Veteran's functioning may be adequately assessed under the provisions of 38 C.F.R. § 4.59.  Notably, in Correia, the Court found similar range of motion testing to be inadequate.  Consequently, the Veteran must be afforded new VA left and right knee examinations that comply with 38 C.F.R. § 4.59 and include all necessary information in view of Correia.  

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for VA examinations by an appropriate examiner to determine the current degree of severity of his service-connected left knee patellofemoral pain syndrome and osteoarthritis of the right knee.  

Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non weight bearing for the left knee and right knee.  If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner.  

The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups.  If the examiner is unable to report the degree of additional range of motion loss during a flare-up, the examiner must explain why it is not feasible to render such an opinion.

2.  After the development requested above has been completed to the extent possible, the RO should again review the record.  If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto.


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).




______________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs