Citation Nr: 20039946 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 10-19 001A DATE: June 11, 2020 ORDER Entitlement service connection for a musculoskeletal pain condition is granted. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella is remanded. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a right arm disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s musculoskeletal pain condition is etiologically related to his military service. 2. The Veteran’s low back disability was aggravated by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a musculoskeletal pain condition have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for service connection for a low back disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1952 to September 1954. This appeal to the Board of Veterans’ Appeals (Board) is from November 2008 and October 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107; 38 C.F.R. § 20.707. However, the VLJ who conducted the hearing in December 2016 is no longer employed by the Board. In March 2020, the Veteran and his representative were sent a letter that notified them that the VLJ who presided over the December 2016 hearing was no longer employed by the Board and offered another hearing before a different VLJ. The Veteran was advised that if he did not respond to the letter within 30 days, the Board would assume that he did not want another hearing and would proceed with an appeal. Neither the Veteran nor his representative responded to the letter and the Board will proceed accordingly. In a February 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for recurrent shingles (claimed as a skin condition) and assigned a 60 percent rating effective August 21, 2007, and granted service connection for degenerative arthritis of the left knee and limitation of extension of the left knee and assigned ratings of 10 percent and zero percent, respectively, effective August 21, 2007. The grants of service connection for shingles and the left knee disabilities in the February 2019 rating decision represent a complete grant of the benefits sought on appeal. Absent any indication that the Veteran perfected an appeal with the downstream elements of the initial ratings or effective dates assigned, those issues are not before the Board. Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). These matters were previously before the Board in March 2017, at which time the Board remanded them for additional development. Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted where a disability is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when a service-connected disability has aggravated a nonservice-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Musculoskeletal Pain The Veteran contends that he has generalized musculoskeletal pain which is either related to an accident in service or is secondary to his service-connected right knee disability. Specifically, the Veteran has reported being involved in a motor vehicle accident while in service, for which he was hospitalized at Taegu, South Korea. He has also reported that he had rheumatic fever as a child, which he has argued made him more likely to have lasting effects from such violent injuries. He has complained of pain in the joints since that time. In the alternative, he attributes joint pain to his service-connected right knee. A review of the available service treatment reports (STRs) does not reveal any complaints, findings, or treatment for any injuries sustained as a result of a motor vehicle accident. The Veteran was treated for chronic right knee strain on numerous occasions during service. The Veteran’s entrance examination dated in February 1952 and the separation examination dated in September 1954 reveal normal clinical evaluations of all relevant body systems. Pes planus was noted at the Veteran’s entrance examination. Post-service treatment reports from J. Mullins, M.D., dated from April 1992 to June 2002 reveal assessments of chronic musculoskeletal pain and post-herpetic neuralgia. Associated with the claims file is a February 2008 statement from Dr. Mullins who indicated that he has treated the Veterans since 1991 for severe musculoskeletal pain which he believes is service-connected. VA outpatient treatment reports dated in June 1965 reflect treatment for herpes zoster with discomfort in the low back and right thigh. VA treatment reports dated during the pendency of the appeal reflect complaints for pain in various joints including the ankles, back, knees, shoulders, and feet. At a VA examination in December 2018, the Veteran reported muscle pain since his accident in service. He endorsed muscle spasms in the back and legs and nerve pain related to shingles in his lumbar spine and hips as well as weakness in the left leg. Following a review of the claims file, interview with the Veteran, and clinical evaluation, the examiner assessed the Veteran with post-herpetic neuralgia and chronic pain syndrome. The examiner opined that it is at least as likely as not that the musculoskeletal pain condition was caused by the accident in service. The examiner noted that the Veteran’s chronic muscle pains are in the same location as the post-herpetic neuralgia, making the two conditions difficult or impossible to differentiate. The examiner indicated that the Veteran has lingering pain in the back muscles combined with post-herpetic neuralgia and the stress of the accident in service is the likely cause of the two conditions. He concluded it was therefore at least as likely as not that the musculoskeletal pain condition was caused by the accident during service. As an initial matter, the Board notes that service connection was granted for post-herpetic neuralgia in an October 2019 rating decision which is not a subject of this appeal. Having reviewed the claims file and relevant evidence of record, it is clear that the Veteran has a current diagnosis of a musculoskeletal pain condition. The December 2018 VA examiner provided an opinion, which indicates that the disability is impossible to differentiate from the now service-connected post-herpetic neuralgia and he concluded that the musculoskeletal pain condition is related to the Veteran’s accident in service. There is no contrary medical opinion of record. Consequently, after affording the Veteran the benefit of the doubt, service connection is warranted for the claimed musculoskeletal pain condition. Thus, the claim must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Low Back Disability The Veteran contends that he has a low back disability, which is either related to an accident in service or is secondary to his service-connected right knee disability. Specifically, the Veteran has reported being involved in a motor vehicle accident while in service, for which he was hospitalized at Taegu. He has also reported that he had rheumatic fever as a child, which he has argued made him more likely to have lasting effects from such violent injuries. He has complained of pain in the back since that time. In the alternative, he attributes a low back disability to his service-connected right knee. A review of the available STRs does not reveal any complaints, findings, or treatment for any injuries sustained as a result of a motor vehicle accident. The Veteran was treated for chronic right knee strain on numerous occasions during service. The Veteran’s entrance examination dated in February 1952 and the separation examination dated in September 1954 reveal normal clinical evaluations of the spine. At a VA examination in October 1955, X-rays of the lumbar spine were normal. Post-service VA treatment reports reflect reports of low back pain in February 1974. Private treatment reports from J. Mullins, M.D., dated from April 1992 to June 2002 reveal complaints of low back pain in November 2000. The Veteran was afforded a VA examination for his lumbar spine in December 2018. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine and intervertebral disc syndrome. Following a review of the claims file and relevant medical history and clinical evaluation of the Veteran, the examiner opined that it is less likely than not that the lumbar spine disability was incurred or caused by the claimed in-service event, injury, or illness. The examiner’s rationale was that diagnostic testing was normal in 1955 and the Veteran had a very extensive career in very physical jobs requiring extensive physical labor following service. The examiner also opined that the lumbar spine disability was less likely than not proximately due to or the result of the Veteran’s service-connected right knee disability because there is no correlation between the low back and chondromalacia patella in the relevant medical literature. Finally, the examiner opined that the Veteran’s degenerative arthritis of the lumbar spine was aggravated beyond its natural progression by the service-connected right knee disability. The examiner’s rationale was that the Veteran reported left-sided back pain over the years and the service-connected right knee disability caused him to favor the right leg and place more weight on the left side. Therefore, the Veteran’s degenerative arthritis of the lumbar spine was aggravated beyond the natural progression by the service-connected right knee disability. She also indicated that the intervertebral disc syndrome was not related to the right knee and was at least as likely as not secondary to the degenerative arthritis of the lumbar spine. Having reviewed the claims file and relevant evidence of record, it is clear that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. The December 2018 VA examiner provided an opinion which indicates that the disability was aggravated beyond the natural progression by the service-connected right knee disability. The examiner provided a rationale to support this opinion and there is no contrary medical opinion of record. Consequently, after affording the Veteran the benefit of the doubt, service connection is warranted for the claimed low back disability. Thus, the claim must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND A review of the claims file reveals that a remand is unfortunately once again necessary with regard to the remaining claims. 1. Increased Rating - Right Knee Chondromalacia Patella The Board remanded the Veteran’s claim in March 2017 in order to obtain an examination to determine the current nature and severity of the service-connected right knee chondromalacia patella. The examiner was specifically requested to conduct a complete examination of the right knee, with range of motion measurements taken in active and passive motion, and in comparison to his left knee. The examiner was requested to determine whether the Veteran has instability or subluxation as the Veteran has complained of “giving way” sensations. Additionally, the examiner was asked to review the VA records of the Veteran’s physical therapy from 2012 and 2013, and discuss the findings that he had a flexion contracture from -25 degrees extension to -5 degrees extension. At a VA examination in December 2018, the examiner failed to provide range of motion for both the right and left knee (for comparison purposes) in active and passive range of motion. Additionally, the examiner did not address the Veteran’s reports of “giving way.” Finally, the examiner failed to provide any discussion or explanation regarding the physical therapy records which reflect a flexion contracture in 2012 and 2013. This examination is therefore inadequate, and another remand is therefore necessary to comply with the Board’s remand and VA’s duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Consequently, the Veteran should once again be scheduled for a VA examination. Additionally, an examination should include, to the extent possible, an estimate of any additional range of motion loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). At the December 2018 VA examination, the Veteran reported flare-ups of the right knee described as increased pain and stiffness due to walking on uneven ground or with overuse. The examiner failed to elicit any further information from the Veteran regarding any additional loss of motion during a flareup and indicated that the Veteran’s range of motion was so limited at baseline that any estimation of change during a flare-up would be mere speculation. On remand, the examiner should elicit additional information to determine any such additional functional loss in terms of additional degrees during flare-ups.   Service Connection Claims 2. Acquired Psychiatric Disorder, to include PTSD The Veteran’s claim for an acquired psychiatric disorder was remanded in part to obtain a VA examination. The examiner was requested to diagnose any acquired psychiatric disorders and provide an etiology opinion for any psychiatric disorders diagnosed. The Veteran was afforded a VA examination in December 2018. The examiner indicated that the Veteran’s claimed psychiatric disorder, diagnosed as unspecified depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran did not meet the criteria for PTSD. The examiner indicated that the Veteran’s depressive symptoms appeared to be related to his son’s death, his wife’s mental condition, and financial stress. In an addendum opinion in January 2019, the examiner opined that the Veteran’s mental health condition incepted prior to military service. The examiner noted that the Veteran’s STRs noted that the Veteran had multiple psychosomatic symptoms at his pre-induction examination. The examiner noted that the Veteran was hospitalized for schizophrenic reaction and inadequate personality with semi-psychotic episode in 1955 but he denied symptoms associated with psychosis at the examination. She also noted that the Veteran had other life events (financial and family stress), which contributed to his mood disorder and that PTSD screens have been inconsistent over the years and the one stressor that is clearly not imagined (the murder of his son) is not related to service. The Board finds that January 2019 VA addendum opinion is internally contradictory in its view as to whether the Veteran had a mental health condition that pre-existed service. If the examiner believes that the Veteran had a pre-existing condition, the examiner provided no rationale as to why it clearly and unmistakably existed prior to service and why it was not aggravated beyond the natural progression by service. For these reasons, the Board finds the January 2019 addendum opinion inadequate and this matter therefore must be remanded for a supplemental medical opinion to adjudicate the case. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Bilateral Hands and Arms The Veteran’s claims for service connection for the bilateral hands and arms were remanded in part to obtain VA examinations to diagnose any disabilities of the hands and arms and provide etiology opinions for any diagnosed disabilities. The examiner was specifically requested to provide opinions regarding whether service connection was directly related to service or was caused or aggravated by a service-connected right knee disability. The Veteran was afforded VA examinations of the hands and arms in December 2018 and he was diagnosed with degenerative arthritis of the hands, elbows, and shoulders. The examiner opined that the disabilities were less likely than not related to service. The examiner provided a rationale for the conclusions. The examiner also opined that degenerative arthritis of the hands, elbows, and shoulders was less likely than not proximately due to or the result of the service-connected right knee disability because there is no connection between the hands, elbow, and shoulders and the knee. Finally, the examiner opined that the hands, elbows, and shoulders were less likely than not aggravated beyond their natural progression by the service-connected knee disability. However, no rationale was provided for the opinion. Of note, the Veteran has been reported to ambulate with the regular use of a cane due to his service-connected right knee disability, which could have some impact on the claims for secondary service connection. A medical opinion or examination report must contain (1) a clear conclusion, (2) be based on supporting data, and (3) set forth a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 303. In light of the above, the Board finds that a VA addendum opinion should be obtained regarding the secondary service connection aspect of the claims. 4. Ankles The Veteran’s claims for service connection for the bilateral ankles were remanded in part to obtain a VA examination to diagnose any disabilities of the ankles and provide etiology opinions for any diagnosed disabilities. The examiner was specifically requested to provide opinions regarding whether service connection was directly related to service or was caused or aggravated by a service-connected right knee disability. The Veteran was afforded a VA examination in December 2018 and he was diagnosed with degenerative arthritis of the ankles. The examiner opined that it was less likely as not that the ankles were incurred in or caused by the claimed in-service event, injury, or illness. The examiner provided a rationale for the opinion. The examiner also opined that the right and left ankle degenerative arthritis were less likely than not proximately due to or the result of the service-connected right knee chondromalacia patella. The examiner indicated that relevant medical literature was reviewed, and that chondromalacia is a condition where the cartilage on the undersurface of the patella (kneecap) deteriorates and softens and can be brought on by overuse or improper knee alignment. The literature highlighted flat feet as a predisposing condition and the Veteran’s entrance examination was positive for findings of pes planus. The examiner indicated that the medical literature does not point to chondromalacia being the cause of ankle pain or degenerative changes and there was no aggravation beyond the natural circumstances. Of note, the Veteran has also been granted service connection for a meniscal condition of the right knee as well as left knee degenerative arthritis with chondrocalcinosis. A medical opinion or examination report must contain (1) a clear conclusion, (2) be based on supporting data, and (3) set forth a reasoned medical explanation connecting the two. See Stefl, 21 Vet. App. at 124. Consequently, the December 2018 medical opinion is inadequate as it focused only on the service-connected chondromalacia patella and did not consider the service-connected meniscal condition of the right knee or the left knee degenerative arthritis with chondrocalcinosis. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 303. In light of the above, the Board finds that a VA addendum opinion should be obtained regarding the secondary service connection aspect of the claim. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his right knee disability. The claims file should be made available to the examiner. The examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, and (if appropriate) weight-bearing and nonweight-bearing settings. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner is specifically asked to state whether the Veteran has instability or subluxation as he has complained of “giving way” sensations. The examiner is also asked to review the VA records of the Veteran’s physical therapy from 2012 and 2013, and discuss the findings that the Veteran had a flexion contracture from -25 degrees extension to -5 degrees extension, at times. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2.Submit the Veteran’s claims file to the examiner who conducted the December 2018 VA mental health examination and provided the January 2019 addendum opinion, or, if unavailable, another suitable VA examiner. After review of the entire record, to include any new evidence received since the prior examination, the clinician must address the following: a) Please specify all psychiatric disabilities that have been present since the date the Veteran filed his current claim in August 2007. b) Was a psychiatric disorder manifest during service? If so, what was the most appropriate diagnosis? The evidentiary basis for a finding that a psychiatric disorder was present during service must be fully explained. As noted in the prior remand, the Veteran asserts that he was hospitalized at Taegu Military Hospital for physical and mental exhaustion prior to his discharge (the records of which are unavailable). c) If, and only if, the examiner finds that a psychiatric disorder was manifest during service, the examiner must then address whether that disability clearly and unmistakably pre-existed service. The examiner should provide supporting rationale for any conclusions reached. d) If, and only if, a psychiatric disorder existed prior to service, the examiner must state whether the Veteran’s pre-existing disorder worsened at all during service, and if so, whether the Veteran’s pre-existing disorder clearly was unmistakably NOT aggravated by service. Again, the examiner must provide supporting rationale for any conclusion reached. e) The examiner is also asked whether the Veteran meets the criteria for PTSD at any time during the appeal period, since receipt of his claim in August 2007. If so, the examiner is then asked whether it is as likely as not related to fear of hostile military or terrorist activity, or if not, to any of the reported in-service stressors. As noted in the March 2017 Board remand, regarding his experiences during service, he described having visions of human heads rolling in front of him while driving. He reports that he worked grave registration and had to drive trucks full of dead bodies. He reports being worried that he caught a disease from the dead bodies because of the skin condition that he was experiencing in service. He reports that he still can smell the bodies and has nightmares about it. He reported that he was driving in a convoy that was fired upon by Russian planes and that he was sure he would be killed. f) The examiner is asked whether any other acquired psychiatric disabilities are as likely as not related to incidents in service, or his symptoms that were present in service. The examiner is asked to address the Veteran’s psychoses diagnoses in the 1950s and provide an opinion on whether he still has a psychosis diagnosis. Also provide an opinion as to whether it is as likely as not that his psychosis manifested within service or within the first year following separation from service. All opinions must be supported by citations to the record. The examiner is asked to consider the lay statements regarding symptomatology over the years and incidents in service. If another examination is deemed necessary, schedule the Veterans for such examination. 3.Submit the Veteran’s claims file to the examiner who conducted the December 2018 VA orthopedic examinations, or another suitable VA examiner. After review of the entire record, to include any new evidence received since the prior examination, the clinician must address the following: a) The examiner is asked whether it is as likely as not that the Veteran's degenerative arthritis of the hands, elbows, and shoulder are caused or aggravated by his service-connected right knee, including the constant use of a cane for his service-connected right knee disability. The examiner is asked to conduct a search of the relevant medical literature prior to responding to this opinion request. b) The examiner is asked whether it is as likely as not that the Veteran's degenerative arthritis of the ankles are caused or aggravated by his service-connected knee disabilities. The examiner is advised that in additional to chondromalacia patella of the right knee, service connection has also been established for a meniscal condition of the right knee and left knee degenerative arthritis with chondrocalcinosis. The examiner is asked to conduct a search of the relevant medical literature prior to responding to this opinion request. All opinions must be supported by citations to the record. A. Hodzic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.