Citation Nr: 1756436 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-08 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a right ankle disorder. 4. Entitlement to service connection for a low back disorder, to include as due to a right knee disorder and a right ankle disorder. 5. Entitlement to service connection for a psychiatric disorder, to include depression, including as secondary to a right knee disorder, a right ankle disorder, and a low back disorder. 6. Entitlement to service connection for addiction to pain medications, including as secondary to a right knee disorder, a right ankle disorder, a low back disorder, and a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has modified the Veteran's claims to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim"). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to service connection for a left ankle disorder has been raised by the record in an April 2017 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for a left knee disorder; a psychiatric disorder, to include depression, including as secondary to a right knee disorder, a right ankle disorder, and a low back disorder; and addiction to pain medications, including as secondary to a right knee disorder, a right ankle disorder, a low back disorder, and a psychiatric disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The competent and credible evidence is in relative equipoise as to whether the Veteran's chondromalacia patella of the right knee with degenerative changes is related to his service. 2. The competent and credible evidence is in relative equipoise as to whether the Veteran's arthritis of the right ankle is related to his service. 3. The competent and credible evidence is in relative equipoise as to whether the Veteran's degenerative disc disorder (DDD) of the lumbar spine with collapsed discs is related to his service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for the grant of service connection for chondromalacia patella of the right knee with degenerative changes have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for the grant of service connection for arthritis of the right ankle have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for the grant of service connection for DDD of the lumbar spine with collapsed discs have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In cases of chronic diseases, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Alternatively, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 8 Vet. App. 374 (1995). In relevant part, 38 U.S.C.A. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. II. Analysis According to his service treatment records (STRs), the Veteran underwent an enlistment examination in December 1981. See December 1981 Report of Medical Examination. The examiner did not note any abnormalities of the back, right knee, or right ankle. However, the Veteran reported a history of leg cramps. Id. In August 1982, the Veteran reported experiencing back pain. See August 1982 health record entry. He was given an assessment for muscle strain. The Veteran reported further back pain while running in October 1982 and was diagnosed with severe muscle strain. See October 1982 health record entry. The Veteran presented to the health clinic with complaints of right ankle pain in May 1983. See May 1983 health record entry. He attributed the pain to jumping out of a truck and landing on the side of his right ankle. Id. An assessment of muscle strain was provided. In June 1983, the Veteran reported right knee pain and was given an assessment of chondromalacia patella. See June 1983 health record entry. The Veteran reported injuring his right ankle while walking down the stairs in April 1986. See April 1986 health record entry. An imaging study did not reveal any significant abnormalities. See April 1986 radiographic report. Further right ankle injuries were reported in May 1986. See May 1986 master problem list; May 1986 health record entry. A separation examination took place in December 1986. See December 1986 Report of Medical Examination. The examiner noted a history of "old injuries," but did not report any abnormalities of the right knee, right ankle, or back. Id. During the examination, the Veteran noted a history of leg cramps and foot trouble. Following the examination, but prior to his separation from service, the Veteran reported another right ankle injury as well as low back pain after moving furniture. See April 15, 1987, health record entry; April 27, 1987, health record entry; May 1987 health record entry. In February 1992, the Veteran was diagnosed with subtalar dislocation of the right ankle. See February 1992 private medical summary. Subsequently, he underwent surgery for the condition. See March 1992 private medical summary. Private medical records reflect additional injuries to the right ankle. See February and March 1993 private medical summaries. The Veteran reported low back pain after a car accident in May 1995. See May 1995 private medical summary. An MRI of the back revealed degenerative disc disease (DDD) of the lumbar spine that had been aggravated by the car accident. See M.M.M.C. MRI lumbar spine report; June 1995 private medical summary. He reported further back pain as well as right knee pain following a car accident in March 1998. See March 1998 private medical summary. An x-ray revealed mild degenerative changes of the patellofemoral joint of the right knee. Further injuries to the back and right knee were reported in May 1998. See May 1998 private medical summary. In May 1998, the Veteran underwent arthroscopic surgery of the right knee. Id. Subsequently, the Veteran reported right knee pain after another car accident. See January 1999 private medical summary. The Veteran's private physician determined that, given the extent of degenerative changes noted on plain radiographic studies, the degenerative changes in the Veteran's right knee could not have developed solely as a result of the March 1998 car accident. The physician based his determination on surgical findings by another private physician, Dr. G.M., and stated that the degenerative changes of the right knee "certainly would not be expected in a 35 year old male in absence of a history of knee injury." Id. Imaging studies performed in August 2008 following a back injury revealed spondylosis and DDD at multiple levels of the lumbar spine. See August 2008 N.K.Z. progress note. A VA examination of the Veteran's back, right knee, and right ankle took place in December 2011. See December 2011 Knee, Ankle, and Back Conditions Disability Benefits Questionnaires. The examiner noted a diagnosis of DDD of the lumbar spine with collapsed discs and chondromalacia patella of right knee. In addition, she noted that imaging studies showed arthritis of the right ankle. However, she determined that the conditions were less likely than not incurred or caused by the Veteran's service. The examiner stated that STRs do not reflect that the Veteran's knee, ankle, and back injuries were significant enough to cause residuals. In addition, the examiner stated that the medical record supports that the Veteran's knee and back condition occurred as a result of post-service injuries, including from motor vehicle accidents. The examiner also stated that there is no clinical support to indicate that the Veteran's in-service ankle strains predisposed him to structural weakness putting him at higher risk for injury. Due to the fact that the examiner did not find that the right ankle or right knee disorders were related to service, she did not provide an opinion as to whether the back disorder was secondary to a service-connected condition. In an April 2017 Board hearing, the Veteran testified that he has experienced right knee, right ankle, and back problems since service and that they have continued to get worse over time. See April 2017 Board hearing transcript. According to the Veteran, his private physician, Dr. G.M., determined that the premature wearing of the cartilage in his knees and right ankle would affect his back because the premature wearing shifts the load-bearing position of the body. Id. In addition, he reported that Dr. G.M. diagnosed him with moderate to severe varus deformity of the right knee and osteoarthritis of the right ankle. Id. Dr. G.M. also reportedly determined that the Veteran should have never passed his military physical examination because his pre-existing varus deformity was too severe and caused premature wearing of the inside of the right knee. Id. However, the Veteran stated that he was not able to obtain Dr. G.M.'s treatment records as the physician is deceased. Id. Upon review of the record, the Board finds that the competent and credible evidence of record is in relative equipoise as to whether the Veteran's right knee, right ankle, and low back disorders are related to service. The medical record establishes current diagnoses of chondromalacia patella of the right knee with degenerative changes, arthritis of the right \ ankle, and DDD of the lumbar spine with collapsed discs. The only VA examination of record found that none of the disorders were related to his active service, citing the lack of evidence of residuals of the Veteran's in-service injuries and multiple post-service injuries. The Board finds no evidence to doubt the examiner's credibility. Nonetheless, the Board also finds that there is of record competent and credible evidence that the Veteran's diagnosed right knee, right ankle, and low back disorders are related to his service. First, while the Veteran's separation examination does not reflect diagnoses of a right ankle or back disorder, STRs following the examination reflect continued complaints of right ankle and low back pain. Moreover, with respect to the right knee disorder, the Board notes that the chondromalacia patella was first diagnosed during service in a June 1983 progress note. There is no competent and credible evidence that this condition pre-existed service. Further, although the Veteran suffered multiple injuries to his right knee after service, his private physician determined that the degenerative changes in the Veteran's right knee could not have developed solely as a result of the March 1998 car accident and must have developed from a history of knee injury. Similarly, when the Veteran was first diagnosed with DDD of the lumbar spine following a May 1995 car accident, the diagnosing physician indicated that the car accident aggravated - not caused - the back disorder. There is no reason to doubt the credibility of the Veteran's physicians. Finally, the Board acknowledges the Veteran's testimony that he has continued to experience right knee, right ankle, and low back problems after his separation from service. As a layperson, the Veteran is competent to testify to observable symptomatology, including pain and reduced functional ability of his right knee, right ankle, and back. See Layno v. Brown, 6 Vet. App. at 470. Moreover, the medical record reflects post-service treatment for the right knee, right ankle, and low back. Accordingly, the Board finds that the Veteran's consistent testimony and post-service treatment of right knee, right ankle, and low back disorders reflect a continuity of symptomatology supporting the existence of chronic conditions as a result of service. 38 C.F.R. § 3.303(b). Therefore, resolving all reasonable doubt in the Veteran's favor, service connection for chondromalacia patella of the right knee with degenerative changes, arthritis of the right ankle, and DDD of the lumbar spine with collapsed discs is warranted. 38 C.F.R. §§ 3.102; 3.303. ORDER Entitlement to service connection for chondromalacia patella of the right knee with degenerative changes is granted. Entitlement to service connection for arthritis of the right ankle is granted. Entitlement to service connection for degenerative disc disease of the lumbar spine with collapsed discs is granted. REMAND Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). According to STRs, the Veteran reported left knee pain while running in July 1983. See July 1983 health record entry. During the April 2017 Board hearing, the Veteran indicated that he has had trouble with his left knee since service and that his symptoms continue to worsen over time. See April 2017 Board hearing transcript. In addition, he reported a diagnosis of depression, which he attributed to his deteriorating health, including his service-connected right knee, right ankle, and low back. Id. With respect to his claimed addiction to pain medications, he stated that he took more pain medications than prescribed because he "was hurting and the only way [he] could have any semblance of life is to not be in pain." Id. He also attributed his claimed depression and pain medication addiction to the overall experience of having injuries in service and not being properly treated for them. Id. Upon review of the record, the Board finds that a remand is necessarily to properly adjudicate the issues of service connection for a left knee disorder; a psychiatric disorder, to include depression, including as secondary to service-connected right knee, right ankle, and low back disorders; and addiction to pain medications, including as secondary to service-connected right knee, right ankle, and low back disorders, and a psychiatric disorder, to include depression. The record reflects an in-service injury to the left knee in July 1983. Although the medical record does not reflect evidence of residuals, the Veteran is competent to testify to observable symptoms, such as residual pain and functional limitation. See Layno v. Brown, 6 Vet. App. at 470. The Board finds that the Veteran's April 2017 testimony before the Board reflects a continuity of symptomatology of a left knee disorder since service. 38 C.F.R. § 3.303(b). Simultaneously, however, the Board finds that there is no competent evidence of record of an underlying left knee diagnosis. Accordingly, a VA examination is necessary to determine whether there is a diagnosis of a left knee disorder and whether the diagnosis, if any, is caused by or related to the Veteran's service. See McLendon, 20 Vet. App. at 79. The RO must also obtain any outstanding VA and private treatment records pertinent to his claimed left knee disorder. With respect to the claims of a psychiatric disorder and addiction to pain medications, the Board finds that the Veteran is competent to report observable symptoms of depression and addiction as well as a diagnosis by his physician. However, the claims file does not include VA or private treatment records reflecting a diagnosis of depression or addiction to pain medications. As such, the RO must obtain any outstanding VA and private treatment records pertinent to his claimed depression and addiction to pain medications. Further, the RO must obtain a VA examination to determine whether the Veteran has a diagnosis of depression or other psychiatric disorder and whether any such diagnosis is related to or caused by his service, including his service-connected right knee, right ankle, and low back disorders. In addition, the VA examination must whether the Veteran has a diagnosis of addiction to pain medication and, if so, whether it is caused by or related to his service, to include as due to a psychiatric disorder or to service-connected right knee, right ankle, or low back disorders. In this regard, the examiner must also determine whether his claimed addiction to pain medication is caused by or related to his claimed psychiatric disorder. Finally, the Board notes the Veteran's indication that he receives disability benefits from the Social Security Administration (SSA). In addition, the Veteran noted that he was treated by a private physician, Dr. G.M., who is now deceased, and was unable to obtain his treatment records. Therefore, the RO must obtain any SSA records and make reasonable attempts to obtain relevant treatment records from whichever medical facility or provider has custody of the records of Dr. G.M. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. With any required assistance of the Veteran, obtain any outstanding VA, SSA, and/or private medical records, and associate them with the claims file. The RO must make reasonable attempts to obtain relevant treatment records from whichever medical facility or provider has custody of the records of Dr. G.M. 2. Following completion of the above, afford the Veteran a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's claimed left knee disorder. The claims folder should be made available to the examiner for review, and the examiner should acknowledge such review in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed left knee disorder is caused by or related to his active service. In rendering this opinion, the examiner must address the in-service complaint of left knee pain. See July 1983 health record entry. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. In this regard, the examiner must address the Veteran's indication that he has experienced left knee problems since his service. See April 2017 Board hearing transcripts. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Then, afford the Veteran a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's claimed psychiatric disorder, to include depression, including as secondary to his service-connected right knee, right ankle, and low back disorders. The claims folder should be made available to the examiner for review, and the examiner should acknowledge such review in the examination report. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disorder is caused by or related to the Veteran's active service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed psychiatric disorder has been caused by or aggravated by the Veteran's service-connected right knee, right ankle, or low back disorder. In rendering this opinion, the examiner must consider the claimed diagnosis of depression reported by the Veteran. See April 2017 Board hearing transcripts. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. Then, afford the Veteran a VA examination with an appropriate health professional to determine the nature and etiology of his claimed addiction to pain medication, including as secondary to service-connected right knee, right ankle, and low back disorders, or to a psychiatric disorder. The claims folder should be made available to the examiner for review, and the examiner should acknowledge such review in the examination report. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed addiction to pain medication is caused by or related to his active service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed pain medication addiction has been caused by or aggravated by the Veteran's service-connected right knee, right ankle, or low back disorder, or by his claimed psychiatric disorder. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. In this regard, the examiner must address the Veteran's contention that he takes more pain medications than prescribed because he "was hurting and the only way [he] could have any semblance of life is to not be in pain" as well as to the overall experience of having injuries in service and not being properly treated for them. See April 2017 Board hearing transcripts. The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 5. Thereafter, readjudicate the Veteran's claims based on the new evidence of record. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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 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). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs