Citation Nr: 18103545 Decision Date: 05/18/18 Archive Date: 05/18/18 DOCKET NO. 14-36 652 DATE: May 18, 2018 ORDER Service connection for left knee arthritis is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, claimed as insomnia, is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for residuals of malaria disability is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, left knee arthritis is attributable to an in-service fracture of the left patella. CONCLUSION OF LAW The criteria for service connection for arthritis of the left knee have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to September 1970. He is the recipient of the Combat Action Ribbon. 1. Entitlement to service connection for a left knee disability, claimed as left patella fracture. The Board finds that service connection for left knee arthritis is warranted. Veterans are entitled to VA disability compensation benefits if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA purposes, chronic diseases are listed in 38 C.F.R. § 3.309(a) and include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With regard to a present disability, a February 2012 VA examination shows the Veteran manifests degenerative arthritis of the left knee. See February 2012 VA Examination. Accordingly, a current disability has been demonstrated. With regard to an in-service event, the Veteran’s service records show he fractured his left patella. See March 1970 Service Treatment Record. Therefore, in service injury is demonstrated. The remaining question is whether there is a medical nexus between the Veteran’s in-service left knee injury and his current left knee disability. Here, the evidence conflicts. In that regard, the February 2012 VA examiner concluded that the Veteran’s left knee pain was caused by arthritis. The examiner opined “given the fact that the Veteran was asymptomatic for so many years after the fracture, and he now has osteoarthritis in that knee, it is less likely than not that his old patellar fracture is causing his current knee pain.” The examiner attributed the Veteran’s current pain to arthritis but she did not address whether the Veteran’s in-service fracture of the left patella caused or aggravated his osteoarthritis except to note the Veteran’s fractured patella resolved in service. The Board finds this opinion and rationale inadequate and has considered remanding for an additional opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). However, the record shows the Veteran sustained an in-service fracture of the left patella and that he now has arthritis of the left knee. The Board notes service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Based on the Veteran’s credible reports, the significant in-service injury, evidence a current disability of the left knee, and evidence that old injuries may increase the risk of osteoarthritis (see Osteoarthritis, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/osteoarthritis/symptoms-causes/syc-20351925 (last accessed May 9, 2018), the Board finds the evidence is in relative equipoise regarding a causal relationship between the claimed left knee disability and service. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Having satisfied the elements of service connection, the Board finds that service connection for left knee arthritis is warranted. REMANDED ISSUES Although the Board regrets the additional delay, a remand is necessary to ensure there is a complete record upon which to decide the Veteran’s claims. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. All claims. The Veteran indicated that additional private medical records may exist and that he was willing to assist in obtaining these records. See September 2012 Statement. On remand, the AOJ should request the Veteran authorize the release of any outstanding private treatment records. 2. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran asserts he has an acquired psychiatric disorder that is due to service. See July 2011 VA Form 21-526; see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). Here, the Veteran’s statements concerning combat with the enemy implicate 38 U.S.C. § 1154(b). See September 2012 Statement. As noted above, the Veteran is the recipient of the Combat Action Ribbon. The Board finds that an examination and opinion addressing the Veteran’s contentions is necessary to adjudicate the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a bilateral shoulder disability is remanded. The Veteran has not been afforded a VA examination for his claimed bilateral shoulder disability. The Veteran asserts that his bilateral shoulder disability is from carrying equipment in the infantry or from a fall where he sustained a fractured patella. See September 2012 Statement; see also October 2014 VA Form 9. The Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as shoulder trauma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that an examination and opinion addressing these contentions is necessary to adjudicate the claim. McClendon, 20 Vet. App. at 81. 4. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran has not been afforded a VA examination for his claimed lumbar spine disability. The Veteran asserts that his lumbar spine disability is from carrying equipment in the infantry or from a fall where he sustained a fractured patella. See September 2012 Statement; see also October 2014 VA Form 9. The Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as lumbar spine trauma. Layno, 6 Vet. App. at 469. The Board finds that an examination and opinion addressing these contentions is necessary to adjudicate the claim. McClendon, 20 Vet. App. at 81. 5. Entitlement to service connection for residuals of malaria disability is remanded. The Veteran has not been afforded a VA examination for his claimed malaria disability. Service records show a single notation that may involve malaria or a related disease. See August 1970 Service Treatment Record. The Board finds that an examination and opinion addressing the Veteran’s claimed disability is necessary to adjudicate the claim. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (Board may not make independent medical assessments); McClendon, 20 Vet. App. at 81. 6. Entitlement to service connection for a sinus disability is remanded. The Veteran has not been afforded a VA examination for his claimed sinus disability. Service records show treatment for pneumonia. See August 1969 Service Treatment Record. The Board finds an examination and opinion addressing the Veteran’s claimed disability is necessary to adjudicate the claim. Colvin, 1 Vet. App. at 174; McClendon, 20 Vet. App. at 81. 7. Entitlement to an initial compensable evaluation for bilateral hearing loss. The Veteran claims that his hearing loss is worse than was reflected by the February 2012 VA examination. Given the passage of time, and the Veteran’s assertion his hearing loss is not adequately reflected, the Board finds an additional hearing examination is warranted to assess the current severity. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). The matters are REMANDED for the following action: 1. The AOJ should secure any outstanding, relevant VA medical records. 2. The AOJ should request that the Veteran provide the names and addresses of any healthcare providers who have provided treatment for his claimed disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 3. Obtain an examination and opinion from a physician with appropriate expertise to assess the etiology of his claimed psychiatric disability. After reviewing the service records and the Veteran’s statements, please provide the following opinion: Is it at least as likely as not (50 percent or greater probability) the Veteran manifest an acquired psychiatric disorder that was incurred in or is due to active service, to include combat? 4. Obtain an examination and opinion from a physician with appropriate expertise to assess the etiology of his claimed bilateral shoulder disability. After reviewing the service records and the Veteran’s statements, please provide the following opinion: Is it at least as likely as not (50 percent or greater probability) the Veteran manifest a left or right shoulder disability that was incurred in or is due to active service, to include carrying equipment in the infantry or his fall where he sustained a fractured patella? 5. Obtain an examination and opinion from a physician with appropriate expertise to assess the etiology of his claimed lumbar spine disability. After reviewing the service records and the Veteran’s statements, please provide the following opinion: Is it at least as likely as not (50 percent or greater probability) the Veteran manifest a lumbar spine disability that was incurred in or is due to active service, to include carrying equipment in the infantry or his fall where he sustained a fractured patella? 6. Obtain an examination and opinion from a physician with appropriate expertise to assess the etiology of his claimed malaria disability. After reviewing the service records, including the August 25, 1970 notation, and the Veteran’s statements, please provide the following opinion: Is it at least as likely as not (50 percent or greater probability) the Veteran manifest residuals of malaria disability that was incurred in or is due to active service? 7. Obtain an examination and opinion from a physician with appropriate expertise to assess the etiology of his claimed sinus disability. After reviewing the service records, including the service records showing treatment for pneumonia, and the Veteran’s statements, please provide the following opinion: Is it at least as likely as not (50 percent or greater probability) the Veteran manifest residuals of pneumonia disability, to include sinus pathology, that was incurred in or is due to active service? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 8. After the foregoing development has been completed, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. 9. After completing any additional notification or development deemed necessary, the Veteran’s claims should be readjudicated and he should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel