Citation Nr: 18155413 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-05 259 DATE: December 4, 2018 ORDER Entitlement to service connection for left knee patellofemoral syndrome is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to an increased, compensable disability rating for a left lateral malleolus avulsion fracture is remanded. FINDING OF FACT The Veteran’s left knee patellofemoral syndrome had its onset during active service. CONCLUSION OF LAW The criteria for service connection for left knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2007 to December 2010. His awards and decorations include the Combat Infantryman Badge. See 38 U.S.C. § 1154(b). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his January 2015 VA Form 9, the Veteran indicated he was only appealing the issues of entitlement to service connection for a right knee condition, a left knee condition, and right ankle condition, as well as the claim for a higher rating for his left ankle disability. 1. Entitlement to service connection for left knee patellofemoral syndrome is granted. Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service, no matter how remote, will be entitled to service connection without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent cause"). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a). If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this provision. Id.; Walker, 708 F.3d at 1338-39. Here, the Veteran’s service treatment records show that he complained of chronic knee pain in October 2009. X-rays of his knees revealed no bony abnormality. Approximately than two years following the Veteran’s separation from service, he sought treatment for left knee pain at the Miami VA Medical Center (VAMC) in October 2012. He gave a history of left knee pain since service and stated that he injured his knee during his deployment. There was tenderness to palpation at the joint line medially. The Veteran has continually sought treatment for left knee symptoms since that time. In February 2013, there was crepitus in the left knee with flexion. He has been diagnosed as having patellofemoral syndrome of the left knee. The Veteran's commendations include the Combat Infantryman Badge. Thus, he is entitled to the combat presumption. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." See 38 U.S.C. § 1154(b). The Board must consider the Veteran's combat experience in resolving the issue of service connection for his left knee disorder. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Under the analysis used in Reeves, the combat presumption of section 1154(b) applies not only to prove that the Veteran injured his left knee during service, but also that he incurred his diagnosed left knee disorder during his service. The Veteran was shown to experience left knee pain during service in October 2009 which has continued since that time, ultimately being diagnosed as left knee patellofemoral syndrome. As such, resolving reasonable doubt in his favor, the Board finds that the Veteran's left knee patellofemoral syndrome was incurred in service. See 38 U.S.C. §§ 1110, 1154(b), 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition is remanded. 2. Entitlement to service connection for a right ankle condition is remanded. Given the Veteran’s history, the Board finds that remand is required for additional VA examinations of his right knee and right ankle, as described below. See 38 C.F.R. § 3.310; Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). 3. Entitlement to an increased, compensable rating for a left lateral malleolus avulsion fracture is remanded. The Veteran was last afforded a VA examination to assess the severity of his service-connected left lateral malleolus avulsion fracture in November 2014. On his January 2015 VA Form 9, he noted that he is experiencing worsening symptoms. As a result, there is some indication the Veteran’s symptoms have increased in severity. To ensure the record reflects the current severity of the Veteran’s service-connected left lateral malleolus avulsion fracture on appeal, a contemporaneous examination is warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claims. 2. Obtain an examination and opinion regarding the nature and etiology of any right knee and right ankle conditions. The claims file and a copy of this Remand must be made available to and reviewed by the examiner(s) in conjunction with the examination(s). The examiner should elicit from the Veteran a complete history of his right knee and right ankle symptomatology, including in-service symptomatology and treatment; as well as his complete post-service history of symptoms and treatment. The examiner should identify all current right knee and right ankle disorders found to be present. (a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee and/or right ankle disorder had its clinical onset during active service or is related to any incident of service. In providing this opinion, the examiner must consider the service treatment records showing treatment for the Veteran’s right knee and right ankle complaints, as well his credible statements concerning a continuity of symptomatology since service. (b.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee and/or right ankle disorder was caused by the Veteran’s service-connected left knee, left ankle, and left foot disorders and/or bilateral shin splints, to include by any altered gait and/or abnormal weightbearing associated with those disorders. (c.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee and/or right ankle disorder was aggravated (i.e., worsened) by the Veteran’s service-connected left knee, left ankle, and left foot disorders and/or bilateral shin splints, to include by any altered gait and/or abnormal weightbearing associated with those disorders. Finally, in light of Saunders, the examiner(s) should acknowledge that pain alone can serve as a functional impairment and therefore qualify as a disability. As a result, if there is no diagnosis of a current right knee and/or right ankle disorder: (d.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s reported right knee pain and right ankle pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? (e.) If so, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disability is related to the Veteran’s military service or was caused or aggravated by any service-connected disability (as framed in questions a. through c. above)? The examiner(s) must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected left lateral malleolus avulsion fracture. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire should be filled out. In the examination report, the examiner must include all the following: (f.) Active range of motion testing results. (g.) Passive range of motion testing results. (h.) Weightbearing range of motion testing results. (i.) Nonweightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck