Citation Nr: 18151008 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-42 625 DATE: November 16, 2018 ORDER Entitlement to service connection for right knee disability is granted. Entitlement to service connection for left knee disability is granted. Entitlement to service connection for low back disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability has been shown to be caused by his active service. 2. The Veteran’s left knee disability has been shown to be caused by his active service. 3. The Veteran’s low back disability has been shown to be caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for left knee disability are met. 38 U.S.C. §§ 1131, 1154(a)(1), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for low back disability are met. 38 U.S.C. §§ 1131, 1154(a)(1) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service as paratrooper, infantryman and a light wheel mechanic with the United States Army from August 1980 to March 1985. The Veteran’s service records reflect that he attended Basic Airborne training and received the Army Parachutist Badge. The Veteran’s service records also reflect that received the Army Commendation Medal and Multinational Forces and Observers Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. A transcript of the hearing is associated with the electronic claims file. Duty to Notify and Assist The Veteran contended that VA orthopedic examinations performed by a physician’s assistant were not adequate because the examiner was not a specialist. The Veteran did not provide any explanation or rationale to show that the disorder under examination was so complex as to require a specialist nor did the Veteran cite shortcomings in the physician assistant’s qualifications. The Board will therefore consider the results of the examinations on their merits. Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Service Connection Generally, to establish service connection 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). The Veteran’s service personnel records reflect that he attended Basic Airborne training and received the Army Parachutist Badge. The Veteran’s service records also reflect that received the Army Commendation Medal and Multinational Forces and Observers Medal. During the Board hearing, the Veteran testified that he participated in over 100 jumps, some at night using heavy equipment, and that he experienced joint pain after the jumps but did not seek treatment because of the need to continue his duties and readiness for deployment. The Veteran’s service treatment records show that he sought treatment on one occasion in November 1983 for tenderness in the sub-trochanteric area following physical training. X-rays showed no fracture, and he was prescribed surface ointment. In October 1984, he sought treatment for low back pain after a workout doing squats. The diagnosis was muscle spasms and he was prescribed surface ointment and muscle relaxant medication. The file does not contain the report of a discharge physical examination. 1. Entitlement to service connection for right knee disability is granted. The Veteran has a current diagnosis of tricompartmental degenerative osteoarthrosis of the right knee. In a May 1985 radiographic report, taken two months after honorable discharge from active service, the medical provider reported “right hip in neutral and frog-leg projections reveals minimal hypertrophic changes indicating degenerative disease.” The medical provider goes on to report “right knee in frontal and lateral projection reveals hypertrophic degenerative changes at the intercondylar eminences…” A concurrent examination did not contain other observations or comments regarding the knee. In a September 3, 2010 correspondence, a VA provider reported that the Veteran’s right knee X-ray was abnormal and showed “1. Tricompartmental degenerative osteoarthrosis, 2. No acute fracture or dislocation, and 3. Small joint effusion.” In a September 10, 2010 VA physical therapy report, the Veteran reported, “both knees and lower back hurts all the time.” In a September 13, 2010 VA physical therapy report, the examiner noted, “Patient with partial stiffness relief on LS, bilateral knee post stretching exercises and LLLT application on both knees.” In an October 6, 2010 VA physical therapy report, it was noted that the Veteran wore bilateral knee braces. In a January 2011 VA orthopedic clinic note, the examiner noted that the Veteran, “awaits bilateral tka. current wait for surgery is 5-6 months. In the interim, pt would like to try Hyalgan injections. He presents today for the first of three injections…both knees were injected with Hyalgan 20mg using aseptic technique.” In a February 2012 VA pain-consult response, it was noted that the Veteran was a “former paratrooper who is referred for management of bilateral knee, back and neck pain. Pt has history of early degenerative joint disease involving his knees, hips and spine, most likely the result of his military service.” In a March 2012 addendum to the VA pain-consult response, it was noted that the Veteran “served in an airborne unit requiring parachute jumps while carrying heavily loaded packs. Per the Veteran, several of these were performed in the dark, preventing adequate anticipatory guarding against impact injury. He has already undergone L knee replacement and is being considered for similar procedure on the R. He has difficulty walking and requires a cane for support. That pain, which he feels is the worst (9/10), is very localized to his knees, which are both tender. It is aggravated by walking and standing.” It was also noted that “with the R, there will be prolonged time before analgesia is achieved by definitive action.” In a May 2013 VA examination for housebound status or permanent need for regular aid and attendance, the examiner reported that the Veteran, “was not able to prepare own meals; needed assistance in bathing and tending to other hygiene needs; and required medication management.” The examiner reported that Veteran wore “bilateral knee braces with tenderness of movement.” The examiner noted that the Veteran had “difficulty walking with both back and knee pain. Knee tenderness to pressure, palpation, and standing.” In July 29, 2014 VA examination report, a VA contract physician’s assistant indicated that no imaging studies had been performed and that the Veteran’s condition had not impacted his ability to work. The examiner opined that, “the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition.” The examiners’ rationale was that, “there was no documentation in the medical record that a back condition or knee condition was incurred during military service. A nexus has not been established.” In a June 2018 letter, after all medical records were reviewed but no examination was performed, a private consulting orthopedic physician opined the Veteran “served six years as a paratrooper with multiple jumps. Repeated exposure to ground reaction forces on landing is causal to knee cartilage surfacing injuries bilaterally…” The medical provider further states, “Deterioration in cartilage surfacing at both knees has necessitated bilateral total knee replacement.” To have probative value, a medical examination report submitted to the Board of Veterans’ Appeals must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301(2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, then the issue will be resolved in favor of the Veteran. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of positive and negative evidence relevant to the cause of the current right knee disability based on the Veteran’s history of multiple parachute jumps with hard landings. Therefore, entitlement to service connection for right knee disability is granted. 2. Entitlement to service connection for left knee disability is granted. Veteran has a current diagnosis of tricompartmental degenerative osteoarthrosis of the left knee. The Veteran has provided lay testimony regarding the completion of numerous parachute jumps throughout his six years of military service as a paratrooper and infantryman. In a September 13, 2010 VA physical therapy report, the examiner noted, “Patient with partial stiffness relief on LS, bilateral knee post stretching exercises and LLLT application on both knees.” In an October 6, 2010 VA physical therapy report, it was noted that the Veteran wore bilateral knee braces. In a January 2011 VA orthopedic clinic note, the examiner noted that the Veteran, “awaits bilateral tka. current wait for surgery is 5-6 months. In the interim, pt would like to try Hyalgan injections. He presents today for the first of three injections…both knees were injected with Hyalgan 20mg using aseptic technique.” In a February 2012 VA pain-consult response, it was noted that the Veteran was a “former paratrooper who is referred for management of bilateral knee, back and neck pain. Pt has history of early degenerative joint disease involving his knees, hips and spine, most likely the result of his military service.” It is noted that the Veteran “has already undergone a L knee replacement.” In a March 2012 addendum to the VA pain-consult response, it was noted that the Veteran “served in an airborne unit requiring parachute jumps while carrying heavily loaded packs. Per the Veteran, several of these were performed in the dark, preventing adequate anticipatory guarding against impact injury. He has already undergone L knee replacement and is being considered for similar procedure on the R. He has difficulty walking and requires a cane for support. That pain, which he feels is the worst (9/10), is very localized to his knees, which are both tender. It is aggravated by walking and standing.” During a May 2012 VA examination, the Veteran reported currently being treated for left knee infection with IV antibiotics. The examiner reported that “left leg exam is limited secondary to being currently treated for left knee infection. Thus, left knee reflex not done.” In a May 2013 VA examination for housebound status or permanent need for regular aid and attendance, a physician reported that the Veteran, “was not able to prepare own meals; needed assistance in bathing and tending to other hygiene needs; and required medication management.” The examiner reported that Veteran wore “bilateral knee braces with tenderness of movement.” The examiner noted that the Veteran had “difficulty walking with both back and knee pain. Knee tenderness to pressure, palpation, and standing.” In July 29, 2014 VA examination report, a VA contract physician’s assistant indicated that no imaging studies had been performed and that the Veteran’s condition had not impacted his ability to work. The examiner opined that, “the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition.” The examiners’ rationale was that, “there was no documentation in the medical record that a back condition or knee condition was incurred during military service. A nexus has not been established.” In a June 2018 letter, after all medical records were reviewed but no examination was performed, a private consulting orthopedic physician opined the Veteran “served six years as a paratrooper with multiple jumps. Repeated exposure to ground reaction forces on landing is causal to knee cartilage surfacing injuries bilaterally…” The medical provider further states, “Deterioration in cartilage surfacing at both knees has necessitated bilateral total knee replacement.” To have probative value, a medical examination report submitted to the Board of Veterans’ Appeals must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301(2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, then the issue will be resolved in favor of the Veteran. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of positive and negative evidence relevant to the cause of the current right knee disability based on the Veteran’s history of multiple parachute jumps with hard landings. Therefore, entitlement to service connection for left knee disability is granted. 3. Entitlement to service connection for low back disability is granted. Veteran has a current diagnosis of thoracolumbar spine strain, degenerative disc disease L3-4, and retrolisthesis L2-3. The Veteran’s medical service treatment records indicate the Veteran was treated once for low back pain. The Veteran has provided lay testimony regarding the completion of numerous parachute jumps throughout his six years of military service as a paratrooper and infantryman. In an October 1984 service treatment record, the Veteran reported low back pains for two days. Veteran stated he “was working out; pain occurred after doing squats.” The provider noted discoloration, tender to palpation lumbar region L side, pt states has pain with bending forward.” In a September 3, 2010, correspondence from a VA provider, the provider stated that the Veteran’s left knee X-ray was abnormal and showed “1. Grade 1 retrolisthesis of L2 and L3, 2. No acute compression fracture deformity, and 3. Diffuse spondylosis with multilevel degenerative disc disease, worse at L3-L4.” Although this impression was entered under the “Left Knee X-Ray”, it is understood that these diagnoses correlate to the spine and not the knee. In a September 13, 2010 VA physical therapy report, the examiner noted, “Patient with partial stiffness relief on LS, bilateral knee post stretching exercises and LLLT application on both knees.” In a February 2012 VA pain-consult response, it was noted that the Veteran was a “former paratrooper who is referred for management of bilateral knee, back and neck pain. Pt has history of early degenerative joint disease involving his knees, hips and spine, most likely the result of his military service.” It is also noted that “plain films of his LS spine demonstrate severe DJD. Hydrocodone is not providing relief. We will start him on morphine SA 30mg TID…” In a March 2012 addendum to the VA pain-consult response, it is noted that “in addition he has non-radiating low back pain that is largely in the midline of the lower lumbar spine. That pain is also aggravated by walking but is also aggravated by bending or any impact activity.” The examiner also reports that “Plain films of his LS spine, which I personally reviewed, demonstrate severe DJD consistent with someone much older.” It was also noted that the Veteran’s “low back pain does not suggest radicular disease and might ultimately respond to Physical Therapy but cannot be addressed until his knees are better. The pain is too diffuse to consider interventional therapy. Moreover, considering how his spine looks on x-ray, it is uncertain that methodologies other than analgesics will provide adequate relief. His lack of response to hydrocodone suggests that doubling dose will have little effect. Accordingly, we started him on morphine SA 30mg TID.” In a May 2012 VA examination report, the examiner diagnosed the Veteran with lumbar spine arthritis, lumbar spine degenerative disc disease, and lumbar spine Grade 1 retrolisthesis of L2 and L3. During the examination the Veteran reported having low back pain since the 1980’s and remembering a few incidents of landing hard when parachuting. The Veteran reported taking morphine, hydrocodone, and naproxen for the pain. The examiner noted that during the range of motion measurements, “the point at which painful motion begins, evidenced by visible behavior such as facial expression, wincing, etc.” The examiner goes on to note that the has a functional loss and/or functional impairment of the thoracolumbar spine after repetitive use is indicated by “less movement than normal, weakened fatigability, excess fatigability, pain on movement, and interference with sitting, standing and/or weight-bearing.” The examiner noted that the Veteran had localized tenderness or pain to palpation for joint and/or soft tissue of the thoracolumbar spine described as “generalized low back pain to touch.” The examiner also noted that the Veteran was using a walker as an assistive device. The examiner noted that the Veteran’s thoracolumbar spine condition had an impact on the Veteran’s ability to work because it limited his ability to stand, walk, bend, and jump. The examiner opined that, “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiners’ rationale was, “that there was a one-time complaint of low back pain when in the military. It appears to have resolved given no further complaints in the STRs or in the immediate post military medical records. Furthermore, it is my opinion that the documented back condition in the STR’s is a separate condition as the current low back conditions.” In a May 2013 VA examination for housebound status or permanent need for regular aid and attendance, the examiner reported that the Veteran’s appeared “uncomfortable. Neck has limited lateral flexion. Pain on any flexion of spine.” The examiner noted that the Veteran had “difficulty walking with both back and knee pain. In describing the restriction of the spine, trunk, and neck, the examiner noted that the Veteran had “pain to any flexion of dorsal and LS spine in any direction.” The examiner also noted that the Veteran needed “assistance with any travel.” In July 29, 2014 VA examination report, the VA contract physician’s assistant indicated that no imaging studies had been performed and that the Veteran’s condition had not impacted his ability to work. The examiner opined that, “the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition.” The examiners’ rationale was that, “there was no documentation in the medical record that a back condition or knee condition was incurred during military service. A nexus has not been established.” In a June 2018 letter, after all medical records were reviewed but no examination was performed, a private consulting orthopedic physician opined the Veteran “served six years as a paratrooper with multiple jumps. Repeated exposure to ground reaction forces on landing is causal…to recurrent lumbosacral injury, causal to L3-4 degenerative disc disease with facet joint changes leading to retrolisthesis and chronic lumbosacral pain.” To have probative value, a medical examination report submitted to the Board of Veterans’ Appeals must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301(2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, then the issue will be resolved in favor of the Veteran. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of positive and negative evidence relevant to the cause of the current right knee disability based on the Veteran’s history of multiple parachute jumps with hard landings. Therefore, entitlement to service connection for low back disability is granted. REASONS FOR REMAND Although the appellant’s claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder to include, PTSD and depression. 1. Entitlement to service connection for an acquired psychiatric disorder to include, PTSD and depression is remanded. The Veteran’s service records indicate that he served six months overseas in the Sinai region from January 1984 to July 1984. In a February 2011 VA treatment record, the Veteran reported that “two of his best friends, with whom he was in the service, killed themselves within months of returning home.” The examiner reported that the Veteran stated, “is it my turn?” As such, the matter is remanded to allow the RO to assist Veteran in corroborating the reported in-service stressors by attempting to obtain relevant military service records and any records adequately identified by the Veteran. Upon corroboration of in-service stressors, determine if any psychiatric disorder, to include PTSD and depression is as at least as likely as not caused by the corroborated in-service stressors. In the same February 2011 VA exam report, the examiner noted that the Veteran was “referred from the Behavioral Health Clinic for ongoing struggles with depression, anger, and readjustment issues.” The examiner noted that “it would appear that he began to develop serious problems during the past year in the aftermath of his 25-year relationship breaking off.” In a June 2018 letter, the private consulting orthopedic physician reported that he performed a mental health examination, made several observations about the Veteran’s presentation, and seemed to suggest possible depression, substance abuse, and character pathology. The Board places no probative weight on this assessment by an orthopedic consultant as it did not arise from an in-person examination, specifically reference any traumatic events, onset or treatment for symptoms in service, or specifically determine the cause of any current mental health disorder. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressors. If more details are needed, contact the Veteran to request the information. Document all requests for information as well as all responses in the claims file. 2. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current mental health disorder including PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the in-service stressor. Determine the nature and etiology of current diagnosis of depression or any other mental health disorders. The examiner must opine whether it is at least as likely as not caused by active service or caused or aggravated by the now service-connected orthopedic disabilities. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel