Citation Nr: 18158574 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-11 340 DATE: December 17, 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 left foot disability is granted. Entitlement to service connection for a right foot disability is granted. Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for residuals of asbestos exposure is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for tension headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance (A&A) or by reason of being housebound is remanded. FINDINGS OF FACT 1. The Veteran’s left knee degenerative joint disease is related to his active service. 2. The Veteran’s right knee degenerative joint disease is related to his active service. 3. The Veteran’s left foot osteoarthritis is proximately due to his bilateral knee disabilities. 4. The Veteran’s right foot osteoarthritis is proximately due to his bilateral knee disabilities. 5. The Veteran’s lumbar-sacral degenerative disc disease is proximately due to his bilateral knee disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for right knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for secondary service connection for left foot osteoarthritis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for secondary service connection for right foot osteoarthritis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 5. The criteria for secondary service connection for lumbar-sacral degenerative disc disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to February 1971. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, 899 F.3d 1382 (Fed. Cir. 2018). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on the issues of entitlement to service connection for diabetes mellitus, type II, and entitlement to service connection for high blood pressure. Given that the remaining issues are not impacted by the above stay, they are considered herein. Service Connection 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left foot disability. 4. Entitlement to service connection for a right foot disability. 5. Entitlement to service connection for a back disability. The Veteran seeks entitlement to service connection for left and right knee, left and right foot, and back disabilities. The Board concludes that the Veteran has current diagnoses of bilateral knee degenerative joint disease that related to an in service left knee injury. 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). Further, a private provider has opined that it is at least as likely as not that the Veteran’s bilateral foot osteoarthritis and lumbar-sacral degenerative disc disease are a result of his bilateral knee osteoarthritis. Thus, the Board concludes that these disabilities are secondary to the Veteran’s bilateral knee degenerative joint disease. Service treatment records reveal that the Veteran was treated for a traumatic injury of the left knee in August 1969. The impression was mild strain of the medial collateral ligament of the left knee. In a September 2011 VA examination report the Veteran was relevantly noted to be diagnosed with bilateral knee degenerative joint disease, degenerative arthritis of the right and left foot, and lumbar-sacral degenerative disc disease. The Veteran submitted a private medical opinion dated in September 2018. The provider reported that in August 1969 the Veteran injured his left knee descending a ship’s ladder while carrying heavy gear. The provider noted that the Veteran’s left leg got caught and twisted. A medical examination was noted to have been performed two days after the incident. The note from that examination stated strain of medial collateral ligament, left knee. No other physical examinations or imaging studies were performed. The treatment was reported to be rest and heat. There was no information in the Veteran’s medical record regarding prescription for any assistive walking device such as braces or crutches or any physical therapy treatment. The Veteran reported that he put up with the left knee pain and completed his duties the best he could even if in pain. The Veteran experienced bilateral knee pain during his in-service period and had bilateral knee pain and impaired mobility constant after service. The examiner noted that the Veteran had no post-service accidents that would have affected his musculoskeletal system. The provider continued to discuss the anatomy of the knee, potential consequences of injuries to the knee, the understanding of excessive wear and tear and trauma to joints, and the impact of biomechanics on the joints. The provider reported that in the Veteran’s medical records there are different medical examination and imaging notes that corroborate bilateral knee changes consistent with bilateral knee osteoarthritis. The examiner noted that there was evidence of a more severe joint compromise of the right knee. The Veteran used assistive walking devices since 2009. In the Veteran’s medical records there was a medical examination and radiologic notes addressing bilateral ankle osteoarthritis changes. The cause of these changes was consistent with the biomechanical abnormality of his stance, weight bearing and gait due to bilateral knee osteoarthritis. The provider stated that based upon the Veteran’s medical history, clinical diagnosis, medical examination notes, and radiologic findings from his medical records, it was the opinion of the reviewer that it was more likely than not that the in-service left knee injury was the starting point of the development of a cascade of pathophysiological changes that led to his bilateral knee osteoarthritis, which caused him chronic constant bilateral knee pain and reduced mobility since the time of this injury in 1969. The provider opined that the alteration of the Veteran’s lower limb kinematics due to chronic bilateral knee pain has contributed significantly as well to the progression to bilateral ankle and bilateral foot osteoarthritis which was noted to be mentioned in several medical and imaging notes in the Veteran’s medical record. Therefore, it was the opinion of the provider that the Veteran’s bilateral ankle and foot osteoarthritis is at least as likely as not a consequence of the chronic biomedical changes imposed by his bilateral knee condition. The provider noted that during service the Veteran’s duties included lifting heavy weights and carrying that worsened not only his bilateral knee pain but caused lower chronic back pain. The Veteran did not seek medical help and the lower back pain had been constant after service. The provider discussed the loads borne by the back as well as the incidence of strain and sprain injuries. The provider reported that the origin of chronic back pain is often assumed to be degenerative conditions of the spine; however, controlled studies have indicated that any correlation between clinical symptoms and radiological signs of degeneration is minimal or nonexistent. The source of low back pain can be related to many different conditions affecting the complex anatomical unit of the spine. The provider discussed intervertebral discs, facet joints, and muscular pain as sources of the pain. Thereafter, the provider rendered the opinion that the Veteran’s chronic low back pain and anomalies began during his service as a consequence of disturbed spine kinematics caused by the Veteran’s bilateral knee osteoarthritis and continued after service. Therefore, the Veteran’s low back condition was more likely than not related to his bilateral knee osteoarthritis that initiated during his service. Entitlement to service connection for left and right knee degenerative joint disease is warranted. The Veteran has a diagnosis of bilateral knee degenerative joint disease and later a notation that the Veteran has osteoarthritis of the knees. A private provider stated that based upon the Veteran’s medical history, clinical diagnosis, medical examination notes, and radiologic findings from his medical records, it was the opinion of the reviewer that it was more likely than not that the in-service left knee injury was the starting point of the development of a cascade of pathophysiological changes that led to his bilateral knee osteoarthritis. Thus, as it is at least as likely as not that the Veteran’s knee disabilities are due to service, service connection for left and right knee degenerative joint disease is granted. Entitlement to service connection for left and right foot osteoarthritis is warranted. The Veteran has been diagnosed with degenerative arthritis of the left and right foot and later with bilateral foot osteoarthritis. A private provider has rendered the opinion that the Veteran’s bilateral foot osteoarthritis is at least as likely as not a consequence of the chronic biomedical changes imposed by his bilateral knee condition. As such, entitlement to service connection for left and right foot osteoarthritis, as secondary to the Veteran’s bilateral knee disabilities, is granted. Entitlement to service connection for lumbar-sacral degenerative disc disease is warranted. The Veteran has been diagnosed with lumbar-sacral degenerative disc disease. A private provider has stated that the Veteran’s chronic low back pain and anomalies began during his service as a consequence of disturbed spine kinematics caused by the Veteran’s bilateral knee osteoarthritis and continued after service. The provider rendered the opinion that the Veteran’s low back condition was more likely than not related to his bilateral knee osteoarthritis that initiated during his service. As such, entitlement to service connection for lumbar-sacral degenerative disc disease is granted. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. 2. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. 3. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. 4. Entitlement to service connection for residuals of asbestos exposure is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. Review of the claims file reveals that the Veteran receives consistent VA treatment. The most recent VA treatment notes associated with the claims file are dated in January 2015; however, the Statement of the Case, dated in June 2017 indicates that VA treatment records dated to March 2017 were considered. In addition, the Veteran’s representative references a June 2015 Social Worker note that is not associated with the claims file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 5. Entitlement to service connection for gout is remanded. 6. Entitlement to service connection for a left shoulder disability is remanded. 7. Entitlement to service connection for a right shoulder disability is remanded. 8. Entitlement to service connection for tension headaches is remanded. The Veteran was afforded a VA examination in September 2011. The Veteran was noted to have complaints of headaches and gout and after examination the Veteran was relevantly was diagnosed with gout, tension headaches, degenerative arthritis and degenerative joint disease of the right shoulder, and left shoulder degenerative joint disease. The examiner ultimately provided negative nexus opinions because there was no objective medical concerning these complaints while in the service. The opinions are inadequate because they rely solely on a lack of notation of complaints in service. As such, it is necessary to afford the Veteran another VA medical examination. 9. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. The Veteran was afforded a VA general medical examination in September 2011 which did not diagnose any psychiatric disability. The Veteran has reported stress in service from working on the fantail of the USS America and his fear of an airplane striking the fantail during landing. The Veteran has also indicated that discrimination was a cause of his psychiatric disability. In a statement dated in November 2018, the Veteran’s representative identifies a June 2015 social work note that states that the Veteran has had depression since leaving the military. The representative provides literature regarding an association between discrimination and depression and argues that the Veteran must be afforded an adequate VA examination. Further, the representative argues that the Veteran should be afforded an examination regarding whether the Veteran’s depression is secondary to his pain from his service-connected physical conditions. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder, to include depression. First, review of the claims file does not reveal the June 2015 social work note referenced by the Veteran’s representative. Second, no VA examiner has opined whether the Veteran’s psychiatric disorder is related to his active service or to any pain associated with the Veteran’s service connected disabilities. As such, the claim is remanded for the Veteran to be afforded a VA examination. 10. Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance (A&A) or by reason of being housebound is remanded. As any development for and decision on the remanded issues could impact the issue of entitlement to SMP based on aid and attendance or by reason of being housebound, the issues are inextricably intertwined. A remand of the claim for entitlement to SMP is required. As the above decision grants entitlement to service connection for knee, foot, and back disabilities, and that the Veteran will thus be in receipt of service-connected benefits, it must be clarified whether the proper claim is entitlement to special monthly pension versus special monthly compensation. As the most recent Examination for Housebound Status or Permanent Need for Regular Aid and Attendance was performed in September 2011, prior to the grant of service connection for knee, foot, and back disabilities, on remand the Veteran must be afforded an examination with regard to the claim for housebound or aid and attendance. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2015 to the present, to include a June 2015 Social Worker notation. 2. After completion of the above, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of any gout, left shoulder, right shoulder, tension headache, and psychiatric disorders. The examiners must opine whether it is at least as likely as not any gout, left shoulder, right shoulder, tension headache, and psychiatric disorders are related to an in-service injury, event, or disease. In addition, the examiner must opine whether it is at least as likely as not any psychiatric disorder found to be present is (1) proximately due to the Veteran’s service-connected disabilities, or (2) aggravated by (defined as any increase in disability) the Veteran’s service-connected disabilities, to include the pain due to the Veteran’s service-connected disabilities. 3. Implement the grants of entitlement to service connection for left and right knee degenerative joint disease, left and right foot osteoarthritis, and lumbar-sacral degenerative disc disease. Thereafter, clarify whether the special monthly pension claim is properly characterized that way or should be special monthly compensation. Thereafter, take all appropriate action with regard to the claim, to include affording the Veteran an examination regarding housebound status and permanent need for regular aid and attendance. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel