Citation Nr: 18141328 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 13-25 482A DATE: October 11, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left knee condition is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for residuals of a right ankle sprain is reopened. REMANDED Entitlement to a disability rating in excess of 10 percent for retropatellar pain syndrome, right knee, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right lower extremity disability, to include as secondary to a back disability, is remanded. FINDINGS OF FACT 1. A December 1998 rating decision denied entitlement to service connection for an unspecified left knee condition and for residuals of a right ankle sprain based on determinations that no chronic disabilities subject to service connection were shown in the service treatment records or any other evidence reviewed. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the rating decision. 2. Since the December 1998 rating decision, the Veteran submitted service records dated in July 2004 indicating she injured her bilateral knees and bilateral ankles in a fall during active duty for training. During a February 2017 hearing before a decision review officer, the Veteran testified her current left knee and right ankle disabilities are related to that fall. During VA examinations in May 2017, left knee strain was diagnosed, and the Veteran reported experiencing functional impairment of the right ankle due to pain. This evidence indicates the Veteran has current disabilities of the left knee and right ankle, which the Veteran contends are related to an injury during service. Accordingly, the Board finds this new evidence is material as it raises a reasonable possibility of substantiating the claims of service connection for left knee and right ankle conditions. CONCLUSIONS OF LAW 1. The December 1998 rating decision, which denied the Veteran’s claims of entitlement to service connection for an unspecified left knee condition and residuals of a right ankle sprain, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The additional evidence received since the December 1998 rating decision is new and material, and the claim of entitlement to service connection for a left knee condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The additional evidence received since the December 1998 rating decision is new and material, and the claim of entitlement to service connection for residuals of a right ankle sprain is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS FOR REMAND The Veteran served on active duty from June 1991 to September 1998, and May 2007 to May 2008. The Veteran also served in the Reserves until retirement in August 2012. In the July 2011 notice of disagreement, the Veteran indicated she seeks entitlement to service connection for her right hip/extremity as part of her appeal for radiculopathy of the right lower extremity. See also September 2011 VA Form 21-0820. The Board has recharacterized the issue as entitlement to service connection for a right lower extremity disability to afford the Veteran a broader scope of review. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to a disability rating in excess of 10 percent for retropatellar pain syndrome, right knee is remanded. The Veteran was last afforded a VA examination of her right knee in March 2018. However, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not ascertain adequate information from the record regarding how factors such as pain, weakness, and/or fatigability limit the Veteran’s functional ability of the right knee during flare-ups and/or following repetitive use over time. On remand, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her service-connected right knee disability. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right ankle disability is remanded. A May 2017 VA examiner opined the Veteran does not have a disability of the left knee or right ankle based on negative x-ray reports, and provided negative nexus opinions. However, the VA examiner did not address the diagnosis of a left knee strain upon the May 2017 examination. Further, the Veteran’s left knee and right ankle pain may constitute disabilities when such pain results in functional impairment or functional limitations. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Upon the May 2017 VA examinations, the Veteran had reduced ranges of motion with objective evidence of pain in both the left knee and the right ankle, and the Veteran reported experiencing functional impairment and limitations in these joints due to pain. Accordingly, the Board finds a remand is necessary to obtain medical opinions as to whether the Veteran’s left knee and/or right ankle disabilities are related to her active duty service, and/or her fall during the 2004 period of active duty for training. 4. Entitlement to service connection for a back disability is remanded. The Veteran’s VA treatment records indicate the Veteran has received private treatment for her back pain. See, e.g., July 2005 VA primary care nurse practitioner note. A remand is required to allow VA to obtain authorization and request these records. The medical evidence of record indicates the Veteran’s current back disabilities include degenerative arthritis, degenerative stenosis, and spondylosis. See March 2018 VA examination report; May 2017 VA examination report; March 2012 VA MRI report of the lumbar spine; April 2007 VA examination report. The March 2018 VA examiner provided a negative nexus opinion regarding the Veteran’s arthritis, but did not address the stenosis or spondylosis diagnoses. See also May 2017 VA examination report. Further, a VA examiner has not addressed a November 1996 emergency care and treatment record which appears to indicate a history of spondylolisthesis in conjunction with the assessment of chronic low back pain, or the Veteran’s reports that she has experienced back pain continuously since her first period of active duty service and after the 2004 fall. See April 2007 VA examination report (claims file was not sent for review). Accordingly, the Board finds a remand is necessary to obtain a medical opinion as to whether any current back disability is related to the Veteran’s service. 5. Entitlement to service connection for a right lower extremity disability, to include as secondary to a back disability, is remanded. The Veteran’s service treatment records for her first period of active duty service include complaints in November 1996 of tingling of her right outer thigh along with complaints of lower back pain. Her service treatment records from her second period of active duty service include repeated complaints of right hip pain and stiffness, as well as assessments of sacroiliitis and complaints of radiating pain down to the right knee. See, e.g., April 2008 TMC4 clinic treatment record; April 2008 physical therapy record. VA examiners have only addressed the Veteran’s right lower extremity complaints in relation to a back disability, and have not otherwise addressed her in-service complaints regarding the right hip/lower extremity. Accordingly, the Board finds a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any current right lower extremity disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any non-VA treatment for her back since her separation from service in September 1998. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s relevant VA treatment records for the period from April 2018 to the present. 3. Schedule the Veteran for an examination of the current severity of her right knee disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain an addendum opinion from appropriate clinician to determine the nature and etiology of the Veteran’s current left knee, right ankle, and back disabilities. It is up to the discretion of the clinician as to whether new examinations are necessary to provide adequate opinions. After a review of the evidentiary record, and examination of the Veteran if deemed necessary by the clinician, the clinician is asked to respond to the following inquiries: a) Please identify with specificity all disabilities of the left knee, right ankle, and back which are currently manifested, or which have been manifested at any time since August 2006. The clinician should address the diagnoses of degenerative arthritis, degenerative stenosis, and spondylosis of the spine. b) For each left knee, right ankle, and back disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability is related to her first period of active duty service? The clinician should address the Veteran’s right ankle sprains in July 1991 and April 1994. The clinician should address the Veteran’s complaints of bilateral knee pain in August 1991; complaints of left knee tenderness after a fall in March 1995; and the September 1997 complaint of twisting the left knee and assessment of a sprain/strain injury. The clinician should address the Veteran’s assessment of chronic low back pain and the indication of a history of spondylolisthesis in November 1996, and the complaints of back pain in December 1996. The clinician should address the Veteran’s contention that she injured her back and has experienced back pain continuously since her first period of active duty service. c) For each left knee, right ankle, and back disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability had its onset during, was aggravated beyond its natural progression by, or is otherwise related to the Veteran’s 2004 period of active duty for training? The clinician should address the July 2004 service treatment records regarding the Veteran’s fall during training, and inversion of the right ankle the following day. The clinician should address the Veteran’s reports that she has experienced left knee, right ankle, and back pain since that injury. d) For each left knee, right ankle, and back disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability had its onset during, was aggravated beyond its natural progression by, or is otherwise related to the Veteran’s second period of active duty service? The clinician should address the Veteran’s complaints in her service treatment records of chronic back/SI joint pain, and the lumbar stability training/exercise classes in May 2008 for lumbago. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current right lower extremity disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review, and interview and examination of the Veteran, the examiner is asked to respond to the following inquiries: a) Please identify with specificity all right lower extremity disabilities which are currently manifested, or which have been manifested at any time since December 2006. The examiner should address the diagnosis of radiculopathy, as well as the Veteran’s contentions of a right hip/extremity condition manifested by pain. b) For each right lower extremity disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability is related to her first period of active duty service? The examiner should address the Veteran’s complaints of tingling of her right outer thigh in November 1996, and the contentions of the Veteran’s representative that the tingling in her thigh was related to the back injury she suffered during service. c) For each right lower extremity disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability had its onset during, was aggravated beyond its natural progression by, or is otherwise related to the Veteran’s 2004 period of active duty for training? The clinician should address the July 2004 service treatment records regarding the Veteran’s fall during training. d) For each right lower extremity disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability had its onset during, was aggravated beyond its natural progression by, or is otherwise related to the Veteran’s second period of active duty service? The examiner should address the Veteran’s repeated complaints and treatment for right hip pain and stiffness, as well as assessments of sacroiliitis and complaints of radiating pain down to the right knee. The examiner should also address the Veteran’s testimony that she has always complained about her leg/hip and sciatica. e) For each right lower extremity disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability was caused by a back disability? The examiner should address the contention of the Veteran’s representative that her sacroiliitis in service could be a contributing factor to her radiculopathy of the right lower extremity. f) For each right lower extremity disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability is aggravated by a back disability? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel