Citation Nr: 18143695 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 07-28 898 DATE: October 22, 2018 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a gastrointestinal (GI) disorder is granted. Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left and right knee disabilities are related to his repeated in-service patellar injuries and ongoing pain, stiffness, and swelling since service. 2. The Veteran’s gastroesophageal reflux disease (GERD) is aggravated by the pain medications he uses to manage the pain associated with the Veteran’s service-connected low back and knee disabilities. 3. The Veteran’s current cervical spine disability is not causally related to his incidents of neck strain in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a GI disability are met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310(b). 4. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1979 to March 1988 and received two good conduct medals. The Board thanks the Veteran for his service to our country. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. This matter was most recently before the Board in February 2017, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. This matter was also before the Board in January 2016 and July 2013. To the extent any prior Board decision is relevant to each issue, it is discussed in more detail in the appropriate section below. In the February 2017 Board remand, the RO was directed to (1) Obtain VA treatment records from Birmingham VAMC (1988 to 1998), Houston VAMC (1988 to 2006) and Biloxi VAMC (1988 to present) “including records from March 1995 documenting knee treatment, and any current VA treatment records dated from August 2014 to the present, including the records from November 2015 discussed by the March 2016 examiner”; (2) Get a supplemental medical opinion regarding the Veteran’s GI disorder; and (3) readjudicate the claim. In late February 2017, the RO submitted requests for records to the Birmingham, Houston, and Biloxi VAMCs as required under the February 2017 Board remand directives. Negative responses were received from all three facilities in May 2017. In October 2017, the RO made a finding that the records requested do not exist. The Board notes that the response from the Biloxi VAMC included detail about the last known location of the files for the Veteran. One portion of the Veteran’s medical records, along with the Veteran’s administrative record from that facility, are shown to have been destroyed in Hurricane Katrina in 2005. The remaining portion of the Veteran’s Biloxi medical record was transferred to the Pensacola file room in 2010. Positive responses have been received from Pensacola, and the claims file does contain medical information regarding appointments held at both Biloxi and VAMC. Additionally, the Veteran submitted a statement in March 2017 stating that he was not treated at the Houston, Birmingham, or Biloxi VAMC locations for any of the conditions on appeal. Based on the foregoing, and because the Veteran was afforded a new GI examination in December 2017, the Board finds that there was substantial compliance with the Board’s February 2017 remand directives to decide the claim on appeal. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Additional reference to the Veteran’s disabilities are presented in the evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. Service Connection In order to establish service connection for a claimed disorder, the following must be shown: (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). 1. Entitlement to service connection for left and right knee disabilities The Veteran contends that his pain in the left and right knees began in service and has continued to the present. Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). The Board concludes that while the Veteran’s bilateral knee osteoarthritis was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, it was noted in service, and there has been continuity of the same symptomatology since service. Service treatment records (STRs) show the Veteran was treated for knee pain repeatedly throughout his nine years in the Army. In October 1980 he complained of bilateral knee and other orthopedic pain following a fall during which he was hit in the back with a heavy object. STRs show the Veteran’s right knee was diagnosed with various patellar injuries, including patellar strain and patellofemoral joint syndrome (PFJS), in May 1985; March 1986; and April, June, and October 1987. In the April 1987 STR entry, the Veteran indicated he had been experiencing his right knee pain for two years, and there had been no recent trauma. Likewise, STRs show the Veteran’s left knee was diagnosed with patellar injuries such as PFJS and retropatellar knee pain in June, July, October, and December 1987. The physician summary in the Veteran’s January 1988 report of medical history for his separation from service noted that the Veteran had swollen joints in both knees. While no evidence of treatment is of record from during the applicable presumptive period, the Board finds that the Veteran continued to experience pain in his knees, and particularly in the patellar region, from when he left service to the present. The Veteran is competent to report that he experienced symptoms such as pain and swelling during that period, but for many years did not seek treatment because the pain medication he was prescribed for his back sufficiently helped alleviate the pain in his knees. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. For instance, the Veteran sought service connection for his right knee in 1994 and had imaging done of his left knee in March 1995, which suggests he was experiencing an increase of pain at that time. In June 2008 the Veteran complained of worsening right knee pain that had existed “since military service.” The Veteran was diagnosed with bilateral arthritis of the knees, and has continually been treated for pain with intermittent inflammation and stiffness since approximately December 2008. Of particular note to the question of whether there is a nexus to the Veteran’s in-service knee pain is that records reflect his symptomatology continues to center around the patellar region in both knees. For instance, the Veteran was diagnosed with chondromalacia patella in January 2009 and bilateral patellar tendonitis in September 2010, when he was also given patellar bands to wear for support. The Board acknowledges that a VA examiner opined in August 2012 that the Veteran’s pain in the patellar region is not related to the Veteran’s arthritis because PFJS, chondromalacia patella, and patellar tendonitis are conditions of the soft tissues, while arthritis is “is a degenerative process involving the bony joint spaces.” However, the Board finds the rationale unpersuasive as it relates to this Veteran because of medical evidence recently added to the claims file. Imaging studies from May 2018 show that the Veteran had “patellar osteophytes” in both knees, and he was diagnosed with mild bilateral patellofemoral arthritis. Given the Veteran’s frequent complaints of patellar region pain in service, his credible lay statements describing a continuity of the same symptomatology in the patellar region since service, substantial supporting medical records, and recent diagnosis of patellofemoral arthritis, the Board finds that the evidence is at least in equipoise that the Veteran’s current bilateral knee arthritis is related to his knee pain in service. Accordingly, the Board finds that the requirements for entitlement to service connection for the Veteran’s left and right knee disabilities have been met, and service connection is granted. 2. Entitlement to service connection for a gastrointestinal disorder The Veteran contends that the pain medication he takes for his service-connected low back and bilateral knee disabilities caused or aggravated a gastrointestinal disorder, to include GERD, a peptic ulcer, or a hiatal hernia. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of, an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran stated in June 2001 that he was diagnosed with a peptic ulcer (PUD) by West Florida Hospital (records for which were sent to Pensacola VAMC, according to the Veteran), and that they were due to his ongoing use of pain medication in service. The Veteran reported to physicians starting in October 2000 that he had previously had PUD. Lab tests confirmed the presence of H. Pylori in December 2000, although imaging done in November 2000 did not reveal an active ulcer. The Veteran’s physician treated him as having had PUD by history. Within the claims file, the Veteran’s post-service medical records go back to approximately 1995, with the exception of several entries unrelated to any of the issues on appeal. In December 1995, the Veteran complained of nausea and a burning pain in the “epigastric region,” for which his physician prescribed Zantac 150 mg. That same month, the Veteran underwent a barium swallow diagnostic exam, which found he had “mild gastroesophageal reflux” (GERD) with an “otherwise normal upper GI examination.” The Veteran’s records show he has continually been prescribed various antacid medications since that time. The medical evidence of record does not include any statements by medical professionals that the Veteran’s PUD or GERD was proximately due to his ongoing use of pain medications. While the Veteran is competent to report his history of symptoms, he is not competent to make a determination about the etiology of his diagnosed GI conditions. However, there are multiple instances throughout the record where the Veteran’s physicians specifically changed or made decisions about the Veteran’s pain medication prescription or dosage based on his GI condition(s). In January 2001, he was not prescribed motrin for his back pain due to his history of PUD and recent treatment for H. Pylori infection. In August 2005, an entry indicated the Veteran was having a poor response to NSAID pain relievers, and that they were causing GI upset. In August 2008, the Veteran’s physician discontinued his Etodolac prescription because of increased GERD symptoms and dyspepsia, and in December that year the NSAID component of his pain management was also discontinued for that reason. Additional, similar instances also exist in the record. The Board acknowledges two VA examinations of record that find there is no relation between the Veteran’s GI conditions and his service-connected disabilities. The Board already found the Veteran’s March 2016 examination to be inadequate in its February 2017 decision, and there is no reason to disturb that finding. In accordance with the remand instructions, a new examination was conducted in December 2017. The examiner found that the Veteran’s hiatal hernia with GERD “is not proximately due to, caused by, or permanently worsened/aggravated beyond a natural progression by the medications the Veteran takes for his service-connected \low back disability and bilateral lower extremity.” The examiner’s rationale was that the Veteran was diagnosed with hiatal hernia/GERD in a 1996 upper GI series, eight years after service, that the Veteran’s hiatal hernia were consistent with his age and obesity, and that his GERD was in turn caused by the hiatal hernia. In relation to the Veteran’s GERD, the Board notes two problems with the examiner’s above stated rationale. First, the standard for secondary service connection does not require the Veteran’s condition to be “permanently” aggravated beyond its natural condition. The examiner was applying too high of a standard when opining whether aggravation had occurred. Second, as noted above, records show that the Veteran was diagnosed with GERD following a 1995 barium swallow that was “otherwise normal.” Thus, his GERD preexisted his hiatal hernia by at least a year. The Board therefore finds that, based upon the inaccurate standard applied and factual basis considered, the December 2017 examination can be given no probative value in relation to the Veteran’s GERD condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion”). However, some of examination is of probative value with relation to the Veteran’s diagnosed hiatal hernia. The examiner also stated that “Hiatal Hernia is not affected by any medications the Veteran takes for his service-connected low back disability and bilateral lower extremity radiculopathy (there is no clinical correlation-nexus.)” The Board finds this portion of the medical opinion to be credible and of significant probative value because it is based on universal concepts, rather than mistaken factual history. The Board finds that the evidence is at least in equipoise that the Veteran’s GI condition, and in particular his diagnosed GERD, has been aggravated beyond its natural progression by the pain medications the Veteran takes for his service-connected low back and bilateral knee disabilities. Accordingly, service connection is warranted on a secondary basis due to aggravation. The Board has noted that under the current version of 38 C.F.R. § 3.310, the baseline severity of the disorder prior to the grant of service connection must be determined. If the medical evidence is adequately developed, the baseline degree of aggravation should be attainable. See 71 Fed. Reg. 52,744. 3. Entitlement to service connection for a cervical spine disability The Veteran asserts that his cervical spine disability is causally related to a motor vehicle accident that he experienced while in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of cervical spine osteoarthritis, and evidence shows that he was treated for cervical muscle strain on several occasions in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of cervical spine osteoarthritis, or any other cervical spine disability, began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with “Mild C5-6 and C6-7 Degenerative Disc Disease” (DDD) until September 2010, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of neck pain intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of osteoarthritis. The issue is medically complex, as it requires knowledge of diagnostic medical testing and the progression of diseases. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Records the Veteran asked us to review from the Social Security Administration (SSA) are particularly relevant to the Veteran’s cervical disability. The Veteran reported he injured himself at work in March 2009, and was diagnosed with cervical, left shoulder and left chest strain. The Veteran was periodically evaluated/treated by an occupational health clinic for the condition through November 2010. When the Veteran initially presented in March 2009, he “denie[d] any significant past medical history of neck problems. State[d] he has had some minor shoulder strains but nothing serious.” At a June 2010 appointment, the Veteran again “specifically denie[d] any prior neck pain or injuries.” In November 2010, an SSA physician determined that, based on a review of the medical record, the Veteran did not have a preexisting condition before the March 2009 injury. The Board also notes findings from September 2010 that the Veteran’s cervical strain had resolved, but that he had an elevated, lipoma-like subcutaneous mass overlying muscles that were “very tender.” This finding is of particular note because the Veteran had a surgery to remove the lipomas from his neck and left upper back in December 2015, and has had no complaints of cervical pain in his medical record since that time. The Board acknowledges the Veteran’s contention that his cervical spine disability is caused by a neck injury he sustained in a motor vehicle accident in service in 1984. As explained in the section discussing the Veteran’s knee conditions, because the Veteran has arthritis of the cervical spine, he may be eligible for presumptive service connection as a chronic condition if the required elements are met. Service Treatment Records (STRs) from January 1984 show that the Veteran sought treatment following a motor vehicle accident where a truck hit the Veteran’s car broadside (as described by the Veteran in his communications with the VA), but the record states that the Veteran denied neck pain at that time. Although the Veteran appears to have mistaken which motor vehicle accident resulted in neck strain, the Board acknowledges that the Veteran was treated for neck or cervical pain several times in service. For instance, STRs show that the October 1980 accident described above that caused right knee pain also resulted in a week of pain “in spine from cervical to tail bone.” Although the cervical symptoms from 1980 did not require additional treatment, in September 1985 the Veteran was in motor vehicle accident and was diagnosed with cervical muscle strain. Finally, in January 1987 the Veteran was in another motor vehicle accident and presented with complaints of neck pain. For this final incident, he was treated for muscle strain over the course of several weeks. The preponderance of the evidence is against a grant of service connection on a direct or presumptive basis, or under the theory of continuity of symptomatology. The Veteran was not diagnosed with arthritis in service, and arthritis was not diagnosed or manifested to a compensable degree within a year of separating from service. Further, unlike with the Veteran’s knee disabilities, the evidence of record specifically shows that the Veteran did not experience a continuity of neck pain or other cervical spine symptomatology following his separation from service. As detailed above, the Veteran specifically denied a prior history of chronic neck pain when he injured his neck at work in March 2009, and at all times during treatment for that injury. Additionally, the Board notes that none of the Veteran’s statements to the VA has tried to claim that he experienced a continuity of cervical spine symptomatology from when he separated in service to when he was diagnosed with arthritis. Accordingly, the Board finds that the Veteran does not meet criteria for service connection based on continuity of symptomatology for his cervical spine disability. Though the Veteran argues that his neck strain during a motor vehicle accident in service must be related to his cervical arthritis now, this argument simply seems to assert that they must logically be connected. However, as explained above, such etiological determinations must be made by a doctor, and there is no basis for the Board to seek additional medical development based on the factual information available. There is no probative evidence indicating that his current, non-symptomatic arthritis is related to three instances of cervical strain throughout the Veteran’s almost nine years of Army service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Likewise, there is nothing to suggest that the lipomas removed from the veteran’s neck and back developed during service. Thus, there is no evidence of record to support direct service connection for a cervical spine or neck disability. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a cervical spine or neck disability. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim of entitlement to service connection for a cervical spine disability is not warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Because rating the granted service connection issues above could significantly impact a decision on the issue of TDIU, particularly for the period on appeal prior to February 2, 2017 that does not currently meet schedular TDIU requirements, the issues are inextricably intertwined. A remand of the claim for TDIU is required.   The matter is REMANDED for the following action: 1. After rating all newly service connected disabilities and completing any additionally indicated development, readjudicate the Veteran’s claim for TDIU. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel