Citation Nr: 18145038 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-16 998 DATE: October 26, 2018 ORDER Entitlement to service connection for a right knee disorder, diagnosed as knee strain, is granted as secondary to service-connected cervical spine strain. Entitlement to service connection for a left knee disorder, diagnosed as knee strain, is granted as secondary to service-connected cervical spine strain. REMANDED Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder with alcohol and cannabis use in remission is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's current right knee disorder, diagnosed as knee strain, is attributable to his service-connected cervical spine strain. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The Veteran's current left knee disorder, diagnosed as knee strain, is attributable to his service-connected cervical spine strain. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. CONCLUSIONS OF LAW 1. The Veteran's right knee disorder, diagnosed as knee strain, is proximately due to, or the result of, his service-connected cervical spine strain. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The Veteran's left knee disorder, diagnosed as knee strain, is proximately due to, or the result of, his service-connected cervical spine strain. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1974 to July 1977. This matter comes to the Board of Veterans’ Appeals on appeal from a February 2015 rating decision. The Board notes that the Veteran was previously represented by the North Carolina Division of Veterans Affairs. He later revoked their representation in an April 2015 statement. In September 2016, the Veteran appointed the Disabled American Veterans as his representative. The record reflects that the Veteran’s claim for a TDIU was denied in an April 2016 statement of the case. After the Veteran perfected his appeal of this issue in an April 2016 VA Form 9, it was certified to the Board in May 2016 VA Form 8. Despite the fact the issue was already on appeal, the RO denied the claim again in a March 2017 rating decision. The Board notes that after the April 2016 statement of the case, additional evidence was associated with the claims file. This evidence includes private treatment records dated from April 2014 to January 2017, and VA treatment records dated from May 2006 to October 2016. In light of the favorable outcome below, there is no prejudice to the Veteran in adjudicating his service connection claims for a right and left knee disorder. Regarding the Veteran’s claim for a TDIU and his increased rating claim for his psychiatric disability, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review these records upon remand. Service Connection 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected cervical spine strain; and entitlement to service connection for a left knee disorder, to include as secondary to service-connected cervical spine strain and/or claimed right knee disorder, are remanded. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran is presumed to have been in sound condition upon entry into service except as to defects, infirmities, or disorders noted at the time of entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In order to rebut the presumption of soundness, it must be shown with clear and unmistakable evidence that a disorder preexisted service and that the disorder was not aggravated by service. Id. Prior to the application of the presumption of soundness, there must be evidence that a disease or injury - that was not noted upon entrance into service - actually manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 303 (1990). The Veteran contends that his bilateral knee disorder was incurred during active service. The Veteran’s service treatment records (STRs) show that his lower extremities were found to be normal in his March 1974 enlistment examination. The Veteran also denied having a history of a "trick" or locked knee in the March 1974 Report of Medical History. In an August 1975 STR, the Veteran complained of a stiff neck on the left side after falling and hitting his upper back. The impression was muscle spasm. In December 1975, the Veteran presented with an abrasion on his right hand and right knee that were caused by a fall on a gravel road. The assessment was small abrasions caused by fall. On June 10, 1976, the Veteran reported having pain in both knees. The record indicated that he had experienced a problem in his right knee all his life, or since he was 16. The assessment was pain in knees. A plan was made to x-ray both knees. Another June 10, 1976 STR stated that the x-rays of the Veteran's knees were within normal limits. The examination showed that there was no effusion on the left or right, no crepitus was present, and the Veteran had a full range of motion with intact ligaments. The impression was knee pain. In the July 1977 separation examination, there continued to be no noted abnormalities in the lower extremities. The Veteran was provided with a VA examination in connection with his claim in February 2015. The Veteran informed the examiner that his current bilateral knee disorder began after falling on both knees during active service in 1976. The Veteran also acknowledged that he has experienced problems with stiffness in his knees since he was 16 years old, but he reported that those problems were compounded by the in-service falls. The Veteran additionally noted that his knee complaints had worsened over the years. The examiner stated that the diagnosis was bilateral knee strain, and he opined that the bilateral knee strain not directly related to active service. The examiner noted that the Veteran was seen during service in 1976 for left and right knee pain, but also stated that there were no findings for either knee in 1976. He concluded that there was no medical evidence that the current bilateral knee strain was a continuation of the left and right knee complaints in service. However, the record has also raised the theory that the Veteran’s bilateral knee strain is secondary to his service-connected cervical spine strain. Regarding the history of the cervical spine disability, The Veteran reported that he has experienced neck pain since he fell and hurt his neck during service in 1975. See June 2014 VA treatment record. The February 2015 VA examiner also opined that the Veteran’s current cervical spine strain developed as a result of the in-service fall. In terms of the relevant manifestations of the cervical spine disability, the February 2015 VA examiner stated that the Veteran had guarding or muscle spasm of the cervical spine that was severe enough to result in an abnormal gait. The examiner also stated that as a result of the Veteran’s neck and knee pain, his posture was stiff; and his gait was slow, stiff, and limp. It was noted that the Veteran used a cane constantly for pain and stability. In addition, he used a wheelchair when one was available. The Veteran has also submitted a March 2015 medical opinion from a physician assistant, J.F, addressing secondary service connection. Regarding the Veteran’s bilateral knee strain, J.F. indicated that the Veteran had received treatment at his facility for the disorder. J.F. noted that one could not say exactly how long the Veteran’s bilateral knee strain had existed prior to the date of diagnosis or definitively state its cause. However, J.F. opined that it was as likely as not that the Veteran’s cervical spine disability caused, contributed to, or aggravated the Veteran’s current bilateral knee strain. Although J.F. stated in the conclusion that the diagnosis was bilateral knee sprain, it is clear from J.F.’s reference to bilateral knee strain in the introduction that this was a clerical error. In response, the February 2015 VA examiner provided a negative medical opinion regarding secondary service connection in February 2016. The examiner noted that the Veteran had a history of a cervical spine injury in 1975, and a complaint of bilateral knee pain in 1976 that reportedly began at age 16. Thus, it was less likely than not that the Veteran’s bilateral knee disorder was proximately due to, or the result of, his cervical spine strain. The examiner also stated that neither the Veteran’s history nor the available records showed that his preexisting bilateral knee disorder was aggravated by his cervical spine strain. The examiner noted that the record only contained the Veteran’s report that his bilateral knee pain had existed since age 16 with normal bilateral knee x-rays in June 1976. In addition, no records showed severity levels of the Veteran’s knee pain to correlate any worsening after the 1975 cervical spine strain. In comparing these medical opinions on secondary service connection, the Board finds that the VA examiner’s opinion provides less probative value. First, the record shows that the Veteran has reported having bilateral knee stiffness prior to service, but he did not specifically report having pain. Notably, the Veteran indicated during the February 2015 VA examination that his current symptoms, consisting of stiffness and pain, began after his falls during service. In addition, the Board finds that the suggestion from the examiner’s February 2016 opinion that the Veteran’s current bilateral knee strain preexisted service directly conflicts with the examiner’s February 2015 conclusion that the current bilateral knee disorder was not a continuation of the in-service knee complaints. Moreover, the examiner did not provide any conclusion in the February 2015 VA medical opinion that the Veteran has a preexisting bilateral knee disorder. Although the examiner noted that the Veteran had bilateral knee stiffness prior to service, the examiner highlighted the fact that the STRs were negative for findings of a bilateral knee disorder. In light of these contradictions, the probative value of the examiner’s negative opinion regarding whether the Veteran’s bilateral knee disorder was caused by his service-connected cervical spine disability is greatly reduced. In addition, the Board notes that the Veteran’s current bilateral knee disorder was not documented in the enlistment examination or at any other point during service. The February 2015 VA examiner also opined that the disorder did not manifest during, and was not otherwise related to, active service. As such, the Board finds that there is no clear and unmistakable evidence that the Veteran had a knee disability prior to service and the presumption of soundness is not rebutted. See Gilbert, 26 Vet. App. at 52 In contrast, J. F’s opinion is more probative. J.F.’s statement that his facility provided treatment for the Veteran’s current bilateral knee strain suggests that he was able to consider the Veteran’s pertinent medical history before reaching a conclusion. This opinion that there is an etiological relationship between the disorders has also not been contradicted by the other medical evidence of record. After considering J. F’s opinion as a whole and in the context of the record, the Board finds that J.F.’s conclusion provides probative value because it addresses the medical issues in this case and was based on J.F.’s analysis of the evidence and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion,"); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole in the context of the evidence of record). Consequently, the weight of the evidence supports finding that the Veteran's current right and left knee disorders are due to, or the result of, his cervical spine disability. Service connection for a right and left knee disorder, diagnosed as bilateral knee strain, is therefore granted as secondary to service-connected cervical spine strain. 38 C.F.R. § 3.310. In light of this grant of secondary service connection, the Board need not consider any other theory of entitlement. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder with alcohol and cannabis use in remission. The Veteran’s psychiatric disability was last evaluated during a February 2015 VA examination. Following this examination, an April 2015 private treatment record noted the Veteran’s report that his psychiatric symptoms had been exacerbated by his cancer as well as the different surgeries and treatment he received. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to a TDIU is remanded. The Board notes that the Veteran’s claim for a TDIU is inextricably intertwined with the initial increased rating claim for anxiety disorder with alcohol and cannabis use in remission being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, consideration of entitlement to a TDIU must be deferred pending adjudication of the Veteran's claim for an increased evaluation. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include any treatment records from the Durham VA Health Care System, dated since October 2016. 2. After completing the preceding development in paragraph 1, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected anxiety disorder with alcohol and cannabis use in remission. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's anxiety disorder with alcohol and cannabis use in remission. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his 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. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins