Citation Nr: 1757710 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 05-41 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for post-traumatic ulnar neuropraxia. 5. Entitlement to an initial compensable rating for status post cholecystectomy. 6. Entitlement to an initial compensable rating prior to November 17, 2011 and in excess of 10 percent thereafter for left shoulder osteoarthritis (left shoulder disability). 7. Entitlement to an initial compensable rating prior to November 17, 2011 and in excess of 10 percent thereafter for right knee osteoarthritis (right knee disability). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Rescan, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1980 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Subsequently, jurisdiction was transferred to the RO in Pittsburgh, Pennsylvania. The Board remanded the appeal in August 2008. The issues of entitlement to service connection for a low back and cervical spine disabilities are adjudicated below. The remaining issues 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 Veteran's back strain is related to his military service. 2. The Veteran's neck strain is related to his military service. CONCLUSION OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a back strain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for neck strain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that his back and neck strains are due to his military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to a current disability, the Veteran has been diagnosed with a back and neck strain. See October 2004 VA examination report; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to the in-service occurrence of an injury, on separation examination in March 2004, the Veteran reported that he fell off of a truck in Iraq and has since had problems with his back. He also endorsed recurrent back pain or any back problem, numbness or tingling, and swollen or painful joints. See Separation Examination March 16, 2004. Regarding nexus, seven months later, at the time of his October 2004 VA examination, the Veteran reported a constant and aching pain around his neck and lower back since his in-service fall. Following the examination, the examiner opined that the Veteran's back and neck strain were more likely than not service connected. See October 2004 VA examination report. There is no competent evidence to the contrary. Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a back strain is granted. Entitlement to service connection for neck strain granted. REMAND Regarding the claims for a left knee disability and post-traumatic ulnar neuropraxia, which to date have been denied for lack of a current disability, remand is needed for updated treatment records, as the most recent treatment records are from 2008. As this action may provide information relevant to his claim for a compensable rating for status post-cholecystectomy, that claim is also remanded. Regarding the left shoulder and right knee disabilities, remanded is needed an examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016), as well as retrospective opinions that comply with Correia and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain all updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his left shoulder and right knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. Please specify range of motion measurements in all areas outlined above. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is also asked to address the following: (a) Please provide an opinion as to the full range of motion of the Veteran's left shoulder and right knee since September 2004 in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. Please specify range of motion measurements in all areas outlined above. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's left shoulder and right knee due to flare-ups since September 2004, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. Please address the statements regarding flare-ups during the examination, as well as any such statements made in the 2004 and 2011 examination reports. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. The Veteran 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 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). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs