Citation Nr: 21071708 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 20-00 100A DATE: December 1, 2021 ORDER The request to reopen the claim of entitlement to service connection for a right knee disability is granted. The request to reopen the claim of entitlement to service connection for a right wrist disability is granted. The request to reopen the claim of entitlement to service connection for a neck disability is granted. The request to reopen the claim of entitlement to service connection for a right ankle disability is granted. Service connection for a right knee strain is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected lumbosacral strain is remanded. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy is remanded. Entitlement to an effective date prior to October 9, 2018, for the grant of service connection for tinnitus is remanded. Service connection for a left wrist disability is remanded. Service connection for a right wrist disability is remanded. Service connection for a left knee disability is remanded. Service connection for a neck disability is remanded. Service connection for a right ankle disability is remanded. Service connection for arrythmia is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. In a November 2013 rating decision, the Veteran was denied service connection for a right knee disability, right wrist disability, neck disability, and right ankle disability because the Veteran did not have a diagnosed right knee disability, right wrist disability, neck disability, or right ankle disability. The Veteran did not appeal this decision or submit new evidence within one year of the denial. As such, the decision became final. 2. Since the November 2013 decision, in March 2015, the Veteran was diagnosed with a right knee strain. The evidence is probative and relevant and cures the prior evidentiary defect that existed at the time of the prior denial, namely, that the Veteran has a diagnosed right knee disability. 3. Since the November 2013 decision, in October 2021, the Veteran testified that he was experiencing right wrist, neck, and right ankle pain to the point that he was restricted from performing daily activities, chores, and occupational tasks. The evidence is probative and relevant and cures the prior evidentiary defect that existed at the time of the prior denial, namely, that the Veteran has pain with functional impairment for his right wrist, neck, and right ankle, and thus may have a current disability. 4. Resolving reasonable doubt in the Veteran's favor, the Veteran's right knee strain is etiologically related to his active service. CONCLUSIONS OF LAW 1. The November 2013 rating decision, to the extent that the AOJ denied service connection for a right knee disability, right wrist disability, neck disability, and right ankle disability, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52, 20.1103 (2021). 2. The evidence received since the November 2013 rating decision, to the extent that the AOJ denied service connection for a right knee disability, right wrist disability, neck disability, and right ankle disability, is new and material, and the claims are reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021). 3. The criteria for an award of service connection for right knee strain have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from August 2006 to December 2011, with service in Iraq from September 2007 to October 2008 and Afghanistan from March 2010 to February 2011. His decorations include the Combat Action Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified at a virtual hearing before the undersigned. For the reasons discussed above, the request to reopen the claim of service connection for a right knee disability, right wrist disability, neck disability, and right ankle disability has been granted. The Board notes that under Chavis, the United States Court of Appeals for Veterans Affairs (Court) has acknowledged that under certain circumstances, the Board has jurisdiction over separate neurological ratings awarded during the adjudication of an increased rating claim for the spine without the need of the claimant filing a specific notice of disagreement (NOD) for the separately awarded neurological ratings. Chavis v. McDonough, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). In that regard, the Board notes the Veteran was granted service connection for left lower extremity radiculopathy associated with his lumbosacral strain and assigned an initial 20 percent rating in an October 2019 rating decision. As this separately awarded neurological rating was awarded in the course of the adjudication of the increased rating claim for the Veteran's lumbar spine disability, the appeal of this rating is currently before the Board as well. SERVICE CONNECTION Service connection for right knee strain The Veteran seeks to establish service connection for a right knee disability as due to active service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon review of the evidence of record, the Board finds that service connection for a right knee strain is warranted. With regard to a current disability, the Veteran has a current diagnosis of a right knee strain. See March 2015 VA Examination. Furthermore, the Veteran has testified that he has experienced pain in his right knee during and since service. Thus, the first element of service connection is met. See Davidson, supra. With regard to an in-service injury, the Veteran attributes his current condition to injuries sustained in service. Specifically, he testified that he hurt his right knee in the course of his duties as a cavalry scout. His service treatment records (STRs) reflect that he was seen for a right knee injury in November 2008 after injuring his right knee upon his return from an air mission. The Veteran was again seen in February 2009, when he noted that he had right knee pain for the last five months. At the time of his separation, the Veteran indicated that he had a history of right knee trouble. The Board finds the Veteran credible as to in-service injury. Because an in-service injury is established, the second element of service connection has been met. See id. The remaining question is whether there is competent nexus evidence establishing a connection between the Veteran's disability and service. In March 2015, a VA physician opined, in essence, that based on a review of STRs it was most likely that that the Veteran's current right knee strain was caused by his "well-documented" in-service right knee injury. The Board has reviewed the medical opinion with respect to nexus, together with the Veteran's statements relating to continuity of symptoms, and finds that the evidence in support of the Veteran's claim is no less probative than the evidence against it. Resolving all reasonable doubt in the Veteran's favor, the third and final element of service connection has been met. Service connection for a right knee strain is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Upon consideration of the evidence of record and the Veteran's testimony at the hearing, the Board finds that additional development is needed prior to issuing a decision on appeal. 1. Entitlement to a rating in excess of 20 percent for service-connected lumbosacral strain is remanded. 2. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy is remanded. The Veteran was last examined for purposes of assessing the severity of his lumbosacral strain in September 2019. During his October 2021 hearing, the Veteran testified that his disability had worsened since that time. Specifically, he testified that he was experiencing more pain and difficulty with his back. Under the circumstances, a new examination is warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As noted in the introduction, the Veteran was awarded service connection for left lower extremity radiculopathy secondary to his service-connected lumbosacral strain during his appeal of an increased rating for his lumbosacral stain. As such, a new examination is warranted for his left lower extremity radiculopathy as well. 3. Entitlement to an effective date prior to October 9, 2018, for the grant of service connection for tinnitus is remanded. The Board finds that a remand is warranted to obtain missing private treatment records and VA treatment records. During the Veteran's October 2021 hearing, he testified that he had received private treatment after his service ended. Those records have not yet been associated with the file. Additionally, the Veteran testified that he received treatment at a VA hospital after his service ended and that he had also continued to receive treatment at a VA hospital. Only records from 2012 to 2014 have been associated with the file. See Lang v. Wilkie, Fed. Cir. (Decided Aug. 19, 2020) (holding that it is reasonable to presume VA is in the constructive possession of any and all VA medical records for an applicant during the appellate time frame). On remand, any outstanding treatment records, both private and VA must be obtained. 4. Service connection for a right wrist disability is remanded. 5. Service connection for a right ankle disability is remanded. 6. Service connection for a neck disability is remanded. The Board finds that new examinations are warranted for these issues of service connection for a right wrist, right ankle and neck disability. The Veteran's right wrist, right ankle, and neck were last examined in July 2013. At the time, the VA examiner was unable to provide any diagnoses. In October 2021, the Veteran testified that he was experiencing right wrist, neck, and right ankle pain to the point that he was restricted from performing daily activities, chores, and occupational tasks. The Board notes the Federal Circuit's holding in Saunders v. Wilkie, which stated that even in the absence of a presently-diagnosed condition, pain can cause functional impairment, and that in that situation, "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the record indicates that the Veteran has right knee pain, right ankle pain, and neck pain with functional loss and he has reported injuries consistent with his MOS of cavalry scout, the Board finds that a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 7. Service connection for a left wrist disability is remanded. 8. Service connection for a left knee disability is remanded The Veteran contends that his left knee wrist and left knee disabilities are due to injury while serving as a cavalry scout. Specifically, he contends that carrying heavy rucksacks, kicking down doors, and jumping out of planes and helicopters caused his disabilities. The Veteran's DD-214 shows MOS of cavalry scout and that he received the Combat Action Badge. The Veteran has not yet been afforded a VA examination in connection with these disabilities. At the October 2021 hearing, the Veteran reported that he has left wrist and left knee pain to the point that he was restricted from performing daily activities, chores, and occupational tasks. As the record indicates that the Veteran has left wrist pain and left knee pain with functional loss and he has reported injuries consistent with his MOS of cavalry scout, the Board finds that a VA examination is required. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 9. Service connection for arrythmia is remanded. 10. Service connection for hypertension is remanded. Lastly, the Board notes that the Veteran has not been afforded a VA examination with respect to the above issues. Here, the Veteran's January 2019 private treatment records reflect diagnoses of hypertension and arrythmia; the Veteran has asserted that these conditions are due to high stress levels and his diet during service; and has provided lay evidence that the conditions have continued since service; however, there is insufficient evidence of record to decide the claim. Consequently, remand for an examination and etiology opinion is warranted. See 38 C.F.R. § 3.159(c)(4) (2020); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received, following the procedures set forth in 38 C.F.R. § 3.159. Specifically, any and all records postdating the Veteran's service should be sought. The evidence obtained should be associated with the record. 2. Ask the Veteran to provide a release for relevant records of treatment from any private practitioners, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran should be notified. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbosacral stain. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. All neurological impairments should be noted to include an assessment of the current level of severity of his left lower extremity radiculopathy. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to his ability to engage in occupational activity. 3. Arrange to have the Veteran scheduled for a VA examination to determine the nature and etiology of any bilateral wrist, left knee, neck and right ankle disability present. The examiner must review the claims file in conjunction with the examination. a) The examiner is requested to state whether the Veteran's complaints of left wrist, right wrist, left knee, neck, and right ankle pain are attributable to known clinical diagnoses or to a disease process other than a known clinical diagnosis. If the examiner cannot identify a known disease or disability which causes these symptoms, the examiner should so state. If no diagnosed disability is identified, the examiner must state whether there is pain with functional impairment. b) For each diagnosed disability of the bilateral wrists, left knee, neck, and/or right ankle, or for pain with functional impairment, is it at least as likely as not (50% or greater probability) that left wrist, right wrist, left knee, neck, or right ankle disabilities were either incurred in or otherwise related to the Veteran's active duty service? The Board notes that pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (2018). The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. In providing the opinion, the examiner must consider and discuss any lay statements of record, to include the Veteran's statements regarding his duties as a scout and the onset and persistence of his symptoms. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Arrange for VA examinations of the Veteran to determine the nature and likely cause his arrythmia and hypertension disabilities. The examiner(s) should review the claim file and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner(s) should provide an opinion with detailed rationale that responds to the following: a) Is it at least as likely as not (50% or greater probability) that arrythmia or hypertension were either incurred in or otherwise related to the Veteran's active duty service? The examiner(s) is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. In providing the opinion, the examiner(s) must consider and discuss any lay statements of record, to include the Veteran's statements regarding his stress levels and diet during service. The examiner(s) must provide the rationale for all proffered opinions. If the examiner(s) is unable to provide any required opinion, he or she should explain why. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner(s) should identify the additional information that is needed. 5. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.