Citation Nr: 21004891 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-15 704 DATE: January 28, 2021 REMANDED Service connection for a right knee disorder is remanded. Service connection for a left ankle disorder is remanded. Service connection for a right ankle disorder is remanded. Service connection for acid reflux (ulcer) is remanded. Service connection for a left knee disorder is remanded. Service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1987 to October 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a VA Regional Office (RO); which denied the issues of service connection for service connection for bilateral ankle disorders, bilateral knee disorders, acid reflux (ulcer), and a low back disorder. Background and Procedural History These claims previously came before the Board in September 2019 where, at that time, the Board denied the issues of service connection for service connection for a right knee disorder, bilateral ankle disorders, and acid reflux (ulcer); and remanded the issues of service connection for a low back disorder and a left knee disorder for further development. The Veteran appealed September 2019 Board decision insofar as it denied the right knee bilateral ankle and acid reflux claims to the Court of Appeals for Veterans’ Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMPR), the parties’ asked the Court to vacate and remand those parts of the September 2019 Board decision. The Court granted the parties’ JMPR in August 20200 and the matter has now returned to the Board. Separately, in July 2020, the RO readjudicated the issues of service connection for a low back disorder and a left knee disorder; and these previously remanded matters have also returned for the Board’s review. See RO’s July 2020 Supplemental Statement of the Case. 1. Service connection for a right knee disorder is remanded. 2. Service connection for a left ankle disorder is remanded. 3. Service connection for a right ankle disorder is remanded. 4. Service connection for acid reflux (ulcer) is remanded. In its August 2020 JMPR, the parties, citing Savage, agreed that the Board failed to request additional information that would permit the Agency to obtain the Veteran’s private treatment records. See Savage v. Shinseki, 24 Vet. App. 259, 268 (2011)(holding that the duty to assist requires the Agency to fully develop the record by making all reasonable efforts to obtain relevant records, including private records). The parties noted that the Veteran had submitted a May 2016 letter from her primary care physician (Dr. Zook), who indicated that she treated the Veteran from May 2000 for several conditions; and agreed that in light of this information, the Board had erred in denying the claims for a right knee disorder, bilateral ankle disorders, and acid reflux (ulcer) without the benefit of complete records from Dr. Z. See also August 2020 correspondence from the Veteran, in which she repeated that the Board had failed to obtain complete relevant private treatment records from Dr. Z. The Board notes that, since this time, the RO sent the Veteran a development letter in November 2019 requesting authorization to obtain private treatment records on her behalf or, alternatively, that she provide the records herself. The Veteran did not respond. In the abundance of caution and to fully comply with the terms of the August 2020 JMPR, the Board finds another development letter is warranted for action in accordance with 38 C.F.R. § 3.159(c)(1). The Veteran should be directed to either provide records from Dr. Z herself or provide a signed authorization for VA to obtain these records on her behalf. RIGHT KNEE The Veteran contends she injured her low back, bilateral ankles, and knees in-service working as a line worker on the telephone wires where she “fell several times and was injured.” Indeed, the Veteran’s service treatment records do document an “injury fall” where she injured her right ankle and foot in 1988 and, indeed, her right ankle had to be casted. While the 1988 records largely document a right foot/ankle injury, there is some documented complaints of right knee pain related to falling off a telephone pole, to include in 1987 and in January and February 1988. After service, the Veteran was afforded a VA examination in September 2015, but the examiner found no pathology warranting a diagnosis. The examiner noted some abnormal findings, such as slight decrease in range of motion, but found no pain on examination and only minor abnormalities on x-ray. Based on this “unremarkable” examination, the Board previously denied this claim finding the preponderance of the evidence is against finding the Veteran has had a right knee condition during the pendency of her claim. Since it is necessary to remand this claim for other reasons, the Board finds a new examination to resolve whether the Veteran’s abnormalities, however “minor,” constitute a “disability” for VA purposes, is warranted. The Court held in Saunders v. Wilkie, 886 F.3d 1356 (2018), that pain, which causes a functional impairment of earning capacity, could be a disability for VA purposes. In this case, the September 2015 VA examiner found no pain of the right knee during the examination but noted limitation of motion and “minor” abnormalities detected on x-ray. It is ambiguous if these abnormalities rise to the level of a functional impairment of earning capacity and, therefore, an addendum opinion with examination is warranted under these circumstances. LEFT ANKLE Again, the Veteran contends she injured her low back, bilateral ankles and knees in-service working as a line worker on the telephone wires where she “fell several times and was injured.” Indeed, the Veteran’s service treatment records do document an “injury fall” where she injured her right ankle and foot in 1988 and, indeed, her right ankle had to be casted. While the 1988 records largely document a right foot/ankle injury, there is one February 1988 service treatment record, which includes a record of left foot tenderness over the ankle. After service, the Veteran sustained a closed fracture of the left ankle in 2010 where she slipped on black ice. She claims her ankle was already “weak” from the in-service injury. The Veteran was afforded a VA examination in September 2015, but the examiner found degenerative arthritis found in the left ankle was more likely attributable to the 2010 injury alone because “review of [service treatment records] do not reflect evaluation of or treatment for a LEFT ankle condition during military service.” While it is true the vast majority of the Veteran’s service treatment records focus on a right ankle injury, it appears the VA examiner may have relied on an inaccurate factual premise that the Veteran never sought treatment or complained of left ankle problems during her military service. Reonal v. Brown, 5 Vet.App. 458, 461 (1993). Thus, the Board finds remand for a new VA examination is warranted. ACID REFLUX The Veteran contends she has had acid reflux continuously since service. In support of this claim, in a May 2019 statement from the Veteran’s representative, the Veteran’s representative indicates that in-service, she was given a medication called “Tagamet,” which is specifically for acid / reflux symptoms. See also https://www.webmd.com/drugs/2/drug-7035/tagamet-oral/details. Indeed, the Veteran’s service treatment records do list Tagamet as a medication administered at that time. See, e.g., STRs dated in May 1988. Thus, the Board finds a VA examination is necessary to ascertain whether her use of Tagamet is indicative of in-service onset of a chronic disability manifested by acid reflux or if she has a current chronic condition related to her use of this medication in the military. 5. Service connection for a left knee disorder is remanded. As noted above, the Veteran contends numerous joint injuries, to include her left knee, as a result of falls working on telephone wires in the military. Indeed, the Veteran’s service treatment records do document an “injury fall” where she injured her right ankle and foot in 1988 and, indeed, her right ankle had to be casted. While the 1988 records largely document a right foot/ankle injury, there are some records documenting knee pain, to include left knee pain, such as 1987 records documenting knee pain after crawling in and out of foxholes, a January 1988 record noting pain in both knees after “falling off pole during school,” and a February 1988 record indicating bilateral medial tibial flares. The Board previously remanded this issue to obtain private treatment records and to afford the Veteran a VA examination. At the time of the Board’s September 2019 remand the medical evidence consisted of STRs, and the report of a VA examination done in September 2015, during which the Veteran had informed that she was receiving treatment for her left knee, and that she had undergone surgery on her left knee some 10-11 years earlier. In letters to the Veteran dated in November and December 2019, the RO duly requested the Veteran to provide an authorization for medical records. The Veteran did not respond to either letter. Thereafter, in February 2020 the Veteran was afforded a VA examination of the left knee, during which she reported that she had undergone a total left knee arthroplasty (TKA) in 2016. This information was unbeknown to the Board at the time of its September 2019 remand. The February 2020 examiner acknowledged that STRs showed that the Veteran had been treated for left knee complaints during service, but averred that there were no post-service records referable to the left knee. The diagnosis was left knee tenosynovitis, which the examiner said was likely not related to service due to “no documentation of any subsequent evaluations for the left knee” after the in-service treatment in 1988. However, in view of the Veteran’s new report during her February 2020 VA examination of a left TKA in 2016, it is reasonable to conclude that there are extant relevant medical records referable to the left knee; and VA caselaw requires that the examiner “must consider the records of prior medical examinations and treatment in order to assure a fully informed examination.” Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, and based on the Veteran’s latest report, a request for extant private medical records relating to the Veteran’s left knee should again be made. See Savage, 24 Vet. App. 259, 268 (holding that the duty to assist requires the Agency to fully develop the record by making all reasonable efforts to obtain relevant records, including private records). The left knee should then be re-examined. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). See also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). 6. Service connection for a low back disorder is remanded. The Veteran contends her low back was injured, along with other joint injuries, working on telephone wires during service. In its September 2019, the Board also remanded the issue of service connection for acquisition of VA examination to ascertain the nature and etiology of the Veteran’s low back complaints. In February 2020, the Veteran was afforded a VA examination. The examiner documenting the Veteran as reporting that she had injured her back during a fall from a telephone pole while in service, and that she had undergone back surgery “for presumed degenerative disc disease” in 2000. The examiner added that “per chart review,” there was no documentation of any evaluation or treatment of a lower back condition while in-service and no medical documentation of a laminectomy in 2000. The Veteran’s STRs confirm that she fell from a telephone pole during service; however, as the examiner observed, there are no medical records referable to the back in the claims file. The diagnosis was lumbosacral strain, which the examiner averred was not related to service. However, there appear to be extant relevant primary care records, and pursuant to the terms of the parties’ August 2020 JMPR, the Board is now remanding the case for acquisition of these records that, coincidentally, may also pertain to the Veteran’s low back disorder. See March 2016 letter from Dr. B.S.Z., regarding her treatment of the Veteran for low back pain. See also Caffrey, 6 Vet. App. 377, 381 (holding that the examiner “must consider the records of prior medical examinations and treatment in order to assure a fully informed examination”). Accordingly, in addition to the request for extant medical records, the Veteran should be scheduled for a new examination, if warranted. See Barr, 21 Vet. App. 303, 311 (holding that once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). See also McClain, 21 Vet. App. 319, 323 (holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). The matters are REMANDED for the following action: 1. Take appropriate action to obtain all of the Veteran’s medical records from Dr. B.S.Z. of Spectrum Health in Sparta, MI.; and, all records from the other private providers that the Veteran alluded to during her February 2020 VA Back and Knee examinations, including all records leading up to, including, and since the year 2016 left knee and year 2000 back surgeries. Apprise the Veteran that she must cooperate fully with VA’s reasonable efforts to obtain these records. Document all efforts taken to obtain these records. If no records are found, document the claims file accordingly. 2. After completion of step 1, schedule the Veteran for a new VA examination with regard to the claims for service connection for bilateral ankle and bilateral knee disorders. In conjunction with the examination, the examiner must (a.) review the claims file. (b.) discuss the Veteran’s in-service experiences and symptoms and current complaints with the Veteran and document the Veteran’s contentions in the examination report. (c.) physically examine the knees and ankles. (d.) conduct any diagnostic testing deemed necessary and ascertain any found diagnoses for the Veteran’s knee and ankle complaints. If there is no diagnosis, clearly state that this is so. To the extent there is no diagnosis found, advise whether the Veteran’s left knee, right knee, left ankle, and/or right ankle pain symptomatology is nonetheless productive of functional impairment of earning capacity. (e.) opine, for each diagnosed knee and ankle disorder (or, if there is no diagnosis, any discernible functional impairment of earning capacity of the knees and ankles) as to whether it is at least as likely as not (50/50 probability) that the disorder i. began during active duty service. ii. began (for degenerative disease/arthritis), within the year after the Veteran’s separation from active duty service. iii. is related to some incident of active duty service, such as the Veteran’s falls from telephone poles during service, and the incidents of knee and ankle pain chronicled in STRs. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran’s contentions, or other pertinent evidence in the record to support the conclusions reached. 3. If, after completion of step 1, medical records referable to acid reflux or ulcers are obtained, schedule the Veteran for an appropriate VA examination with regard to her claims for service connection for such disorder. In conjunction with the examination, the examiner must (a.) review the claims file. (b.) discuss the Veteran’s in-service experiences and symptoms and current complaints with the Veteran and document the Veteran’s contentions in the examination report. (c.) physically examine the Veteran. (d.) conduct any diagnostic testing deemed necessary and ascertain any found diagnoses for the Veteran’s gastroesophageal complaints. If there is no diagnosis, clearly state that this is so. To the extent there is no diagnosis found, advise whether the Veteran’s gastroesophageal symptomatology is nonetheless productive of functional impairment of earning capacity. (e.) opine, for each diagnosed disorder (or, if there is no diagnosis, any discernible functional impairment of earning capacity arising from gastroesophageal symptomatology) as to whether it is at least as likely as not (50/50 probability) that the disorder began during or is related to some incident of active duty service, such as the Tagamet medication that the Veteran was administered during service. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran’s contentions, or other pertinent evidence in the record to support the conclusions reached. 4. If, after completion of step 1, medical records relevant to the lumbar spine are obtained, schedule the Veteran for a VA examination with regard to her claims for service connection for a low back disorder. In conjunction with the examination, the examiner must (a.) review the claims file. (b.) discuss the Veteran’s in-service experiences and symptoms and current complaints with the Veteran and document the Veteran’s contentions in the examination report. (c.) physically examine the lumbar spine. (d.) conduct any diagnostic testing deemed necessary and ascertain any found diagnoses for the Veteran’s low back complaints. If there is no diagnosis, clearly state that this is so. To the extent there is no diagnosis found, advise whether the Veteran’s low back pain symptomatology is nonetheless productive of functional impairment of earning capacity. (e.) opine, for each diagnosed low back disorder (or, if there is no diagnosis, any discernible functional impairment of earning capacity of the back) as to whether it is at least as likely as not (50/50 probability) that the disorder i. began during active duty service. ii. began (for degenerative disease/arthritis), within the year after the Veteran’s separation from active duty service. iii. is related to some incident of active duty service, such as the Veteran’s falls from telephone poles during service. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. (Continued on the next page)   All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran’s contentions, or other pertinent evidence in the record to support the conclusions reached. 5. After completion of the above directives and any other necessary action, re-adjudicate the claims. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Childers, 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.