Citation Nr: 18141545 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 14-26 770 DATE: October 11, 2018 ORDER The appealed issue of an increased disability rating higher than 40 percent for right lower extremity varicose veins is dismissed. The appealed issue of an increased disability rating higher than 10 percent for left lower extremity nerve root impingement is dismissed. Service connection for bilateral knee degenerative joint disease (DJD), including patellofemoral syndrome, is granted. Service connection for a right elbow disability, claimed as right lateral epicondylitis, is denied. REMANDED Service connection for a left elbow disability, claimed as left lateral epicondylitis, is remanded. An increased disability rating higher than 20 percent for a back disability, to include the question of whether a separate rating is warranted for loss of bladder control, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the May 2018 videoconference Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested that the appealed issue of an increased disability rating higher than 40 percent for right lower extremity varicose veins be withdrawn. 2. At the May 2018 videoconference Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested that the appealed issue of an increased disability rating higher than 10 percent for left lower extremity nerve root impingement be withdrawn. 3. The Veteran has a current diagnosis of DJD of the knees; chronic symptoms of bilateral knee DJD were manifested during active service; and bilateral knee DJD symptoms were continuously manifested since service. 4. The Veteran received treatment for right elbow epicondylitis during service; there is no current right elbow disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appealed issue of an increased disability rating higher than 40 percent for right lower extremity varicose veins have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appealed issue of an increased disability rating higher than 10 percent for left lower extremity nerve root impingement have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral knee DJD, including patellofemoral syndrome, are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a right elbow disability, claimed as right lateral epicondylitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, has active service in the U.S. Navy from August 1983 to August 2003. This matter is on appeal from July 2010, November 2012, and January 2014 rating decisions. In May 2018, the Veteran testified at a videoconference Board hearing before the undersigned. In the unappealed June 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for the bilateral epicondylitis and bilateral knee patellofemoral syndrome; however, additional service treatment records were added to the record during the course of this appeal that were not before VA at the time of the June 2003 rating decision. Because these service treatment records show additional in-service treatment for the elbow and knees, they are relevant evidence. The issue on appeal is properly considered as an original claim for service-connected compensation benefits, rather than a request to reopen a previously denied claim. See 38 C.F.R. § 3.156(c). Consequently, no consideration of whether there was clear and unmistakable error in the June 2003 rating decision regarding the denials of service connection for the knee and elbow disabilities is needed, as that decision did not become final due to receipt of additional service records. This is not prejudicial to the Veteran as showing clear and unmistakable evidence in a prior denial is a higher burden than if VA reconsiders his initial claim, on all the evidence of record. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist.   1. Withdrawal of Increased Rating Appeals for Right Lower Extremity Varicose Veins and Left Lower Extremity Nerve Root Impingement The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. On the record at the May 2018 Board hearing, the Veteran requested to withdraw the appealed issues of increased disability rating higher than 40 percent for right lower extremity varicose veins and an increased disability rating higher than 10 percent for the left lower extremity nerve root impingement. Because the Veteran has withdrawn these issues, there remain no allegations of errors of fact or law for appellate consideration. For this reason, the Board does not have jurisdiction to review the issues, so they must be dismissed. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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 be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of bilateral knee DJD (i.e., arthritis) is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable to the diagnosis. As explained below, there is no currently diagnosed right elbow disability. 2. Service Connection Analysis for Bilateral Knee DJD After review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether "chronic" bilateral knee symptoms of DJD were manifested during active service. The service treatment records show that the Veteran received medical treatment for the knees during active service. In January 2003, the Veteran reported that he had had chronic bilateral knee problems for years, including right knee pain with an inability to kneel, and the service medical examiner then attributed the bilateral knee symptoms to a diagnosis of patellofemoral syndrome. Later, at the April 2003 pre-separation VA examination, the Veteran reported continued bilateral knee pain and grinding with running and ascending and descending stairs with several years duration, and the VA examiner diagnosed moderate bilateral patellofemoral syndrome. The evidence is at least in equipoise on the question of whether the Veteran experienced "continuous" bilateral symptoms of bilateral knee DJD since service. The earliest evidence of record showing diagnosis of DJD of the knees is shown in 2010; however, the Veteran credibly reported at the July 2014 VA examination that he continued to experience bilateral knee pain after service separation, and the account is consistent with his reported history of knee symptoms during the course of post-service treatment, so the account of continuous bilateral knee symptoms since service is of significant probative value. See, e.g., October 2010 SSA Physical Residual Functional Capacity Assessment (noting the Veteran’s August 2010 report of bilateral knee pain with onset 15 years ago – i.e., during service). In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced both "chronic" symptoms of bilateral knee DJD in service and "continuous" symptoms of bilateral knee DJD since service, which are sufficient to warrant service connection under the provisions of 38 U.S.C. § 1112 and 38 C.F.R. § 3.303 (b). 3. Service Connection Analysis for a Right Elbow Disability The Veteran contends that he has a current right elbow disability related to right elbow symptoms manifested during service. He seeks service connection on this basis. After review of all the lay and medical evidence, the Board finds that the Veteran does not have a current diagnosis of right elbow disability and has not had one at any time since service. The Veteran was treated for right lateral epicondylitis during service. He received steroid injections with improvement. A pre-discharge VA examination was conducted in April 2003, at which time he reported his right elbow symptoms were improved. Although he raised some complaints concerning pain in the left elbow, the history section of the report does not show he had any complaints for the right elbow at that time. On examination, he reported tenderness on pressure over the left lateral epicondyle, but not on the right. The July 2014 VA examiner evaluated the Veteran and determined that, while he received treatment for right lateral epicondylitis during service, the examination of the right elbow was unremarkable at that time. The July 2014 VA examiner noted that the Veteran demonstrated left elbow pain but did not diagnose a right elbow disability. Because the July 2014 VA examiner based the medical opinion of no right elbow disability on accurate and sufficient facts and data and provided adequate rationale for the opinion, it is of significant probative value. Furthermore, despite post-service treatment for various orthopedic problems such as bilateral shoulder and knee problems, there is no post-service diagnosis of, or treatment for, a right elbow disability. Consistent with post-service treatment records, the attorney stated at the Board hearing that there was no current treatment for the right elbow. While the Veteran believes he has a current right elbow disability, he is not competent to provide a right elbow diagnosis in this case. The question of whether there is a current right elbow disability related to service is medically complex and requires specialized medical training and knowledge, as well as the ability to interpret clinical findings and diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence showing no current right elbow disability than the Veteran’s unsupported lay opinion of a current right elbow disability, which is not competent and is of no probative value. Consequently, the criteria for service connection for a right elbow disability are not met, and the appeal is denied. REASONS FOR REMAND 4. Service Connection for a Left Elbow Disability The July 2014 VA examiner opined that the left elbow pain was referred pain from left shoulder surgery and there was no separate left elbow condition; however, shortly after the July 2014 VA examination, July 2014 nerve conduction studies revealed a diagnosis of mild to moderate cubital tunnel syndrome on the left manifested by a slowing of the ulnar sensory conduction velocity around the left elbow. Because the diagnosis of mild to moderate cubital tunnel syndrome on the left was not considered by the July 2014 VA examiner, a supplemental VA medical opinion is needed.   5. Increased Rating for Back Disability Because the Veteran had back surgery in May 2016, the Board finds that there may have been a material change of the back condition since the most recent VA examination performed in December 2013; therefore, a new VA examination is needed to assess the current severity of the service-connected back disability. Furthermore, the Veteran contends that he is entitled to a separate rating is warranted for loss of bladder control. The rating criteria contemplate that separate ratings will be assigned for such symptoms, if they are due to the service-connected back condition. The RO should consider this upon remand. 6. TDIU For reasons explained above, the Board has granted service connection for bilateral knee DJD. The RO must assign initial ratings for the disabilities in the first instance, which potentially impacts the TDIU appeal. Also, the outcome of the remanded issues of service connection for a left elbow disability and an increased rating higher than 20 percent for the back disability potentially impacts the TDIU appeal. For these reasons, final adjudication of the TDIU appeal will be deferred until the AOJ completes the ordered development and implements the grant of benefits for the bilateral knee disabilities. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the question of whether the Veteran’s left elbow disability is at least as likely as not: (1) causally or etiologically related to service; (2) proximately due to or caused by the service-connected left shoulder disability, or (3) aggravated beyond its natural progression by service-connected left shoulder disability. The examiner must consider the diagnosis of cubital tunnel syndrome on the left when providing the medical opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected back disability. The examiner should opine whether the Veteran has loss of bladder control due to his back condition. To the extent possible, the examiner should identify any symptoms and functional impairments due to the back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. 3. Implement the grant of benefits for bilateral knee DJD. 4. When readjudicating the issues on appeal, the RO should consider whether a separate rating is warranted for loss of bladder control due to the back condition. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel