Citation Nr: 20022023 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-30 116 DATE: March 30, 2020 ORDER Service connection for lumbar spine degenerative disc disease (DDD) with bilateral lower extremity radiculopathy is granted. Service connection for cervical spine DDD with arthritis is granted. Right knee degenerative joint disease (DJD) is granted. REMANDED The issue of service connection for basal cell carcinoma to include residuals is remanded. The issue of service connection for a left knee disorder is remanded. The issue of service connection for a right shoulder or trapezius disorder is remanded. FINDINGS OF FACT 1. Lumbar spine DDD with bilateral lower extremity radiculopathy was caused by service. 2. Cervical spine DDD with arthritis was caused by service. 3. Right knee DJD was caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine DDD with bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2019). 2. The criteria for service connection for cervical spine DDD with arthritis have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2019). 3. The criteria for service connection for right knee DJD have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force from March 1968 to November 1971 and from November 1972 to March 1992. The issue of service connection for residuals of a back injury was denied in a November 1971 rating decision and notice was sent to the Veteran in December 1971. The Veteran’s service treatment records (STRs) were not requested for association with the file until November 2012 and March 2013. The records were added to the file in April 2013. The records contain an August 1968 record showing that the Veteran fell eight feet from a pier and was examined for rib and back injuries. This record was available at the time of the November 1971 rating decision and indicates an in-service event. It is a relevant service department record and this issue will, therefore, be reconsidered. See 38 C.F.R. § 3.156(c). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, arthritis will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). 1. Entitlement to service connection for a lumbar spine disorder with radiculopathy. An August 1968 STR indicates that the Veteran was treated at the emergency medical department after falling 8 feet from a pier into shallow water. His lumbar spine was within normal limits. His spine was normal at his October 1971 physical examination for service separation and his November 1972 physical examination for service entrance. September 1985 STRs indicate treatment for back pain. Several September 1988 STRs indicate treatment and hospitalization for low back pain which radiated to the left lower extremity. He was placed on a physical profile due to low back pain. August 1991 STRs state that the Veteran had low back pain of two months and was diagnosed with a low back strain and recurrent low back pain. A November 1991 STR states a diagnosis of lumbar degenerative joint disease (DJD), that the Veteran had chronic pain, and that he was taking medication. On his January 1992 report of medical history at service separation states that the Veteran had back pain since 1982. A July 2002 private treatment record indicates that the Veteran was treated for low back pain. A December 2007 X-ray study states that the Veteran had degenerative changes of the lower lumbar spine. A December 2007 lumbar spine magnetic resonance imaging (MRI) study indicates that the Veteran had DDD with spinal stenosis. A February 2008 VA treatment record states a diagnosis of low back pain with bilateral lumbar radiculopathy. A March 2008 private treatment record states that the Veteran had “a several-year history of chronic low back pain present virtually all of the time” and had right and left lower extremity radiculopathy. An October 2008 lumbar spine MRI report states that the Veteran had degenerative disc changes and disc bulging. In July 2013, the Veteran was afforded a VA examination. The Veteran reported that he was treated with physical therapy several times while in service and post service. He stated that he believed his back disorder was caused by in-service exercises. He was diagnosed with DDD. The examiner opined that DDD was first diagnosed in 2008 and, therefore, was most likely due to aging. The examiner failed to discuss the many records indicating complaints of and treatment for low back pain and radiculopathy prior to 2008. It appears that the examiner was not familiar with the complete record and, therefore, this opinion is of low probative value. A February 2020 private medical opinion states that the Veteran had DDD and that it was caused by military service. The orthopedic surgeon who provided the opinion stated that the Veteran’s spine was normal when he began service and then fell off a pier in August 1968. The Veteran had reported that he had low back pain since that time. The clinician referenced other STRs which indicated additional in service back treatment and noted that he had no post-service injuries which would account for his on-going complaints of back pain. The clinician stated that he disagreed with the July 2013 VA examiner that the lumbar spine disorder was due to aging. The clinician stated that, although the aging process may have contributed to his disorder, the initial injury in service damaged his low back discs which then progressed. The evidence is at least in equipoise as to whether the lumbar spine disorder began in service. Service connection for lumbar spine DDD with bilateral lower extremity radiculopathy is granted. 2. Entitlement to service connection for a cervical spine disorder. A December 1982 STR states that the Veteran injured his neck skydiving approximately one month prior and that he had a residual recurrent cervical spasm. A November 1988 STR indicates that the Veteran was treated for cervical spine complaints. A March 1991 STR states that the Veteran had cervical spine and radiculopathy symptoms after injuring himself during a parachute jump. He was diagnosed with DDD. An X-ray study from that time states that cervical spine DDD or DJD could not be ruled out. An April 1991 STR states that the Veteran had possible cervical spine radiculopathy. A November 1991 STR states a diagnosis of chronic cervical spine pain and DJD. On his January 1992 report of medical history at service separation, the examiner noted that the Veteran had swollen or painful joints of the neck since 1982 as a result of parachuting, and that he had been treated with medication and physical therapy. In July 2013, the Veteran was afforded a VA examination. The Veteran reported that he had been diagnosed with cervical spine DDD. The examiner diagnosed cervical spine spondylosis. The examiner opined that “per medical literature, condition is the inevitable consequence of aging regardless of race, professional background, military service or history of injuries.” The examiner provided no rationale for this opinion and did not discuss this Veteran’s in-service and post service medical history. Therefore, this opinion is inadequate and of no probative value. The February 2020 private medical opinion states that the Veteran had cervical DDD, which he stated is a chronic arthritic condition. The examiner opined that the cervical spine disorder began in service when the Veteran injured himself in November 1982 during a parachute jump and had continued since that time. The clinician stated that the in-service injury initially damaged the neck and began the degeneration in the Veteran’s neck. He stated that he disagreed with the July 2013 examiner that the disorder was due to aging, although stated that the aging process may have contributed to the progression of the disorder. He stated that “it is common for an injury to cause damage to cartilage such as the discs of the spine that progresses to significant arthritis over time.” As the only probative opinion states that the cervical spine DDD with arthritis began in service and has continued since that time, service connection is granted. 3. Entitlement to service connection for a right knee disorder. STRs dated between February and June 1986 indicate that the Veteran had a right knee sprain, contusion, and abrasion in February 1986 following a parachute landing fall. He caught his right leg in his parachute and was dragged. He was placed on a physical profile for the injury. An August 2002 private treatment record states that the Veteran had right knee pain and swelling but had not had any injury or trauma. In October 2012, the Veteran was treated for right knee pain. He stated that he had pain in his knee for over 10 years. An October 2012 right knee X-ray study indicates that the Veteran had joint effusion and degenerative and dystrophic spurring. An October 2014 X-ray study indicates that the Veteran had degenerative osteoarthritis. A December 2014 private treatment record states that the Veteran reported that his right knee was injured in a parachute accident in 1986. The report of a July 2013 VA examination states that the Veteran injured his right knee during a parachute jump in 1986. In providing an opinion on the right knee, the examiner only discussed bronchitis and its residuals. The examiner did not discuss the right knee. This examination is, therefore, inadequate and of no probative value. A February 2020 private opinion states that the Veteran had right knee DJD. He noted the in-service parachute jump injury in 1986 and stated that this injury caused damaged to the knee cartilage which then progressed to arthritis. As such, the clinician opined that right knee DJD was caused by service. As the only probative opinion states that right knee DJD was caused by service, service connection is granted. REASONS FOR REMAND 1. The issue of service connection for basal cell carcinoma to include residuals is remanded. 2. The issue of service connection for a left knee disorder is remanded. 3. The issue of service connection for a right shoulder or trapezius disorder is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICTOR: The Veteran has been treated by many private medical providers. Complete records have not been requested. As such, remand is necessary. The July 2013 VA examination report states that the Veteran’s left knee disorder was caused by a work-related injury for which he received workers’ compensation. Remand is necessary to obtain the workers’ compensation records. Updated right shoulder and trapezius, left knee, and basal cell carcinoma examinations must be obtained after obtaining the above records. The February 2020 private opinion on the right shoulder indicates that it began in November 1973 when the Veteran was seen for burning right shoulder pain. The November 1973 STR indicates that the Veteran was seen for a follow-up appointment after a nodule was removed from his shoulder. There is no indication of orthopedic complaints or of burning pain. As such, this opinion is inadequate. The July 2013 examiner did not provide an opinion as to whether a right shoulder or trapezius disorder was caused by service. The July 2013 VA skin and scars examinations indicate that the Veteran had no residuals of the removal of basal cell carcinomas. An August 2015 medical opinion and an undated medical opinion state, however, that he had several scars, hypo and hyper pigmentation of the skin, and textural abnormalities of the skin. The undated opinion indicates that the post-service basal cell carcinoma is a continuation of the in-service cancer but failed to provide an explanation for this conclusion. Therefore, remand is necessary to obtain a new VA medical opinion which expressly states whether post service basal cell carcinoma was a continuation or recurrence of the in service basal cell carcinoma, and to specifically state all residuals of the in service basal cell carcinoma. 2. Obtain and associate with the file any workers’ compensation records indicating a work-related left knee injury. 3. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claimed disorders that is not already in VA’s possession. Specifically request authorization to obtain records from the following: *Okaloosa Orthopedics and Sports Medicine. *Coastal Skin Surgery and Dermatology. *Emerald Coast Dermatology and Skin Surgery Center. *Dr. Thomas Manski. *Crestview Open MRI. *Ketchum, Wood, and Burgert Pathology Associates. *North Okaloosa Medical Center. 4. AFTER ASSOCIATING THE ABOVE-REQUESTED RECORDS WITH THE FILE, OR DOCUMENTING THEIR UNAVAILABILITY, schedule the Veteran for VA shoulder and muscle injury examinations to obtain an opinion as to the nature and etiology of any identified right shoulder or trapezius disorder(s). All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Identify all right shoulder disorders. (b.) Identify all right trapezius disorders. (c.) Whether each identified right shoulder and right trapezius disorder was caused by any in service event, injury, disease, or disorder, or in any way originated during service. (d.) Whether each identified right shoulder and right trapezius disorder was caused by any service connected disorder. (e.) Whether each identified right shoulder and right trapezius disorder was aggravated by any service connected disorder. Service connection is currently in effect for right ear sensorineural hearing loss, lumbar spine DDD with bilateral lower extremity radiculopathy, cervical spine DDD with arthritis, and right knee DJD. The examiner’s attention is drawn to the following: *June 1975 STR stating that the Veteran had a right shoulder muscle strain. VBMS Entry 10/8/2014, p. 10. *December 1982 STR stating that the Veteran had a recurrent trapezius muscle spasm. VBMS Entry 4/10/2013. *September 1985 STR stating that the Veteran had tenderness just below the scapula. VBMS Entry 10/8/2014, p. 82. *March 1987 STR indicating that the Veteran had shoulder pain. VBMS Entry 9/30/2015, p. 9. *November 1988 STR stating that the Veteran had a stiff neck with pain moving into his back and shoulders. VBMS Entry 10/8/2014, p. 8. *March 1991 STR indicating trapezius symptoms and right shoulder pain. VBMS Entry 4/10/2013. *January 1992 report of medical history on which the examiner wrote that the Veteran had swollen or painful joints of the shoulder since 1982 as a result of a parachuting incident, that he had been treated with medication and physical therapy, and that he had occasional recurrences of symptoms. VBMS Entry 10/8/2014, p. 34. *Undated STR stating that the Veteran had right shoulder and trapezius pain following a day of physical training with students. VBMS Entry 4/10/2013. *March 2004 private treatment record stating a diagnosis of right shoulder DJD. VBMS Entry 1/9/2013, p. 130. *November 2007 private treatment record stating that the Veteran had a several year history of right shoulder pain and stating a diagnosis of probable impingement syndrome and right shoulder degenerative changes. VBMS Entry 1/9/2013, p. 63-64. *July 2014 notice of disagreement (NOD) on which the Veteran reported that he believed his right shoulder and trapezius symptoms were caused by in-service parachute jumps, leading students in physical training exercises, carrying heavy loads, wearing heavy backpacks in field training exercises, lifting, and pushing. *February 2020 private medical opinion stating that the Veteran had right shoulder osteoarthritis. 5. AFTER ASSOCIATING THE ABOVE-REQUESTED RECORDS WITH THE FILE, OR DOCUMENTING THEIR UNAVAILABILITY, schedule the Veteran for a VA knee examination to obtain an opinion as to the nature and etiology of any identified left knee disorder(s). All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Identify all left knee disorders. (b.) Whether each identified left knee disorder was caused by any in service event, injury, disease, or disorder, or in any way originated during service. (c.) Whether each identified left knee disorder was caused by any service-connected disorder. (d.) Whether each identified left knee disorder was aggravated by any service-connected disorder. Service connection is currently in effect for right ear sensorineural hearing loss, lumbar spine DDD with bilateral lower extremity radiculopathy, cervical spine DDD with arthritis, and right knee DJD. The examiner’s attention is drawn to the following: *February 2011 left knee X-ray study indicating mild degenerative changes without acute osseous changes. VBMS Entry 1/9/2013, p. 117. *March 2012 left knee X-ray study indicating mild tricompartment degenerative changes. VBMS Entry 1/9/2013, p. 116. *October 2012 private treatment record in which the Veteran had complaints of knee pain which he said had been going on for over 10 years. VBMS Entry 1/14/2013, p. 9. *December 2012 statement from the Veteran that he injured his right knee during a parachute jump and had surgery after retirement. *July 2013 VA examination report stating that the Veteran had had a left knee meniscus repair and had residual arthritis. *July 2014 NOD on which the Veteran reported that he injured his knee in service and now had daily pain. He reported that he had no work related injury and, instead, stood up while at work and the knee would not straighten. He indicated that he believed this was due to injuries sustained in service. *November 2014 left knee MRI indicating joint effusion and degenerative arthritis. VBMS Entry 9/30/2015, p. 45. *December 2014 private treatment record stating that the Veteran had left knee pain, a history of arthroscopy and removal of the meniscus, and had degenerative changes. VBMS Entry 9/30/2015, p. 44. 6. AFTER ASSOCIATING THE ABOVE-REQUESTED RECORDS WITH THE FILE, OR DOCUMENTING THEIR UNAVAILABILITY, schedule the Veteran for all appropriate VA examinations with a dermatologist to obtain an opinion as to the nature and etiology of basal cell carcinoma and its residuals. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether post-service basal cell carcinoma is a recurrence or continuation of the in-service basal cell carcinoma. (b.) Whether post-service basal carcinoma was caused by any in-service event, injury, disease, or disorder, or in any way originated during service, including as a result of in-service exposure to sun. (c.) Identify all residuals of basal cell carcinoma and indicate whether they are residuals of the in service or post-service basal cell carcinoma. The examiner’s attention is drawn to the following: *STRs indicating in-service treatment for basal cell carcinoma: --October 1973 record stating that a nodule was excised from the Veteran’s shoulder. VBMS Entry 9/18/2015, p. 4. --July 1986 pathology report stating that the Veteran had a growth on the left anterior of his neck and indicating that it was positive for basal cell carcinoma. VBMS Entry 4/10/2013. --July and September 1986 records stating that he had basal cell carcinoma. VBMS Entry 4/10/2013; VBMS Entry 10/8/2014, p. 49, 55, 62. --October 1986 records stating that he had basal cell carcinoma removed and that he had a healed incision from the procedure. VBMS Entry 4/10/2013. --October 1986 record indicating that the Veteran had a lesion removed from his neck but that no residual carcinoma was present. VBMS Entry 4/10/2013. --November and December 1986 records stating that the Veteran had had basal cell carcinoma. VBMS Entry 4/10/2013; VBMS Entry 10/8/2014, p. 58. --Undated records stating that the Veteran was status-post basal cell carcinoma and that he had a scar on his neck as a result. VBMS Entry 4/10/2013; VBMS Entry 10/8/2014, p. 47. --March 1987 record stating that the Veteran had a large mass on his neck which was a possible lipoma. VBMS Entry 10/8/2014, p. 71. --April 1987 records stating that the Veteran had a lipoma removed from the back of his neck. VBMS Entries 10/8/2014, p. 34, 48. --July 1987 examination stating that the Veteran had basal cell carcinoma removed from the front of his neck in October 1986 and a lipoma removed from the back of the neck in April 1987. VBMS Entry 10/8/2014, p. 37-38. --April 1988 records stating that he had a scar from a 1986 removal of basal cell carcinoma and that he had additional skin removed. VBMS Entry 4/10/2013. --April 1988 record stating a history of basal cell carcinoma. VBMS Entry 10/8/2014, p. 16. --June 1988 record stating that the Veteran had skin scar tissue. VBMS Entry 4/10/2013. --July 1988 record stating that the Veteran was status-post basal cell carcinoma. VBMS Entry 10/8/2014, p. 15. --January 1992 report of medical history stating that the Veteran had a benign cyst removed from his neck in 1986 and basal cell carcinoma removed from his neck in 1990 with no recurrence. VBMS Entry 10/8/2014, p. 33-34. --January 1992 physical examination for service separation which states that the Veteran had a history of basal cell carcinoma with full recovery and no recurrence. VBMS Entry 10/8/2014, p. 30-31. *Private treatment records indicating treatment in 1996, 1999, 2000, and 2007 for basal cell carcinoma. VBMS Entry 8/27/2012. *January 2008 private treatment record stating treatment for basal cell carcinoma. VBMS Entry 8/27/2012, p. 55. *October 2009 private treatment record stating that the Veteran had basal cell carcinoma removed. VBMS Entry 8/27/2012, p. 31. *November 2011 to January 2012 private treatment records indicating treatment for basal cell carcinoma. VBMS Entry 8/27/2012. *December 2012 statement from the Veteran in which he stated that he believed his in-service and post-service basal cell carcinoma was the result of in-service exposure to sun and to the chemicals trichloroethylene and tetrachloroethylene. *July 2013 VA examination report stating that the Veteran reported that he was first diagnosed with basal cell carcinoma in-service and that he had approximately 20 lesions removed since that time. The examiner reported that the basal cell carcinoma was caused by life-long exposure to sun. *July 2014 NOD on which the Veteran stated that many of his in-service duties required him to work outside in the sun which he believed caused his basal cell carcinoma. He reported that he had scarring of the arms, head, and neck, and that the skin on his arms was easily bruised and torn. *August 2015 letter from a private dermatologist describing the extent of the Veteran’s basal cell carcinoma residuals, as well as actinic damage and hypo- and hyper-pigmentation of the skin. VBMS Entry 9/30/2015, p. 24-33. *September 2015 statement from the Veteran stating that, at service separation, he was not examined by a dermatologist and may have had undetected basal cell carcinoma at that time. He also noted that he was treated in service for actinic keratosis on several occasions and stated that he was “continuously exposed to the sun” while in service. He provided a lengthy description of his various in-service duties and postings which resulted in exposure to the sun. *Undated private medical opinion stating that the Veteran had several scars, hypo- and hyper pigmented skin, and textural abnormalities of the skin as a result of numerous treatments for basal cell carcinoma and exposure to the sun. The clinician stated that the post-service basal cell carcinomas were a “process continuation” of the in service basal cell carcinoma and that the Veteran would likely continue to be at risk of developing 1 to 2 new basal cell carcinomas per year. VBMS Entry 9/30/2015, p. 3. 7. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.