Citation Nr: 21008833 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-30 752 DATE: February 18, 2021 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, including mood disorder, anxiety, depression, adjustment disorder, and posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with hypertrophic spondylosis and Intervertebral Disc Syndrome (IVDS) is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a right ankle disability, including right achilles tendonitis, is remanded. Entitlement to service connection for a left little finger disability is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The weight of the evidence is against a finding that the Veteran’s left knee disability was incurred in service and/or manifested to a compensable degree within one year of discharge from service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1116, 5107;38C.F.R. §§3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1971 to October 1978 and from May 1986 to February 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and December 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2015 rating decision, the RO, in relevant part, granted service connection for degenerative disc disease of the lumbar spine with hypertrophic spondylosis and intervertebral disc syndrome (lumbar spine disability) and assigned a 10 percent disability rating, effective March 24, 2015, and denied service connection for bilateral plantar fasciitis, mood disorder, anxiety, and depression. In the December 2016 rating decision, the RO denied service connection for a left-hand injury, left little finger injury, right achilles tendonitis (right ankle disability), and left knee injury. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2019. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in June 2019, at which time they were remanded for additional evidentiary development. In an October 2020 rating decision, the RO increased the Veteran’s service-connected lumbar spine disability rating to 20 percent, effective March 24, 2015. Entitlement to service connection for a left knee disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran has been diagnosed with left knee degenerative arthritis and asserts it was incurred in service. Thus, a current disability has been established by the evidence. The Veteran’s service-treatment records reveal that he was involved in a motor vehicle accident in June 1973 and was assessed with an injury to his leg, along with multiple abrasions. Subsequently, in July 1976, he reported occasional knee pain. The Veteran testified at the hearing in January 2019 that he injured his knee in the motor vehicle accident. Furthermore, his knee was also aggravated by military duties, including road marches. Thus, in-service incurrences have been established by the evidence. Having established a current disability and in-service incurrences, the remaining question is whether the Veteran’s current left knee disability is related to his in-service incurrences. The Veteran submitted a statement in January 2017 and indicated that he continues to suffer from pain, discomfort, and limitations of his left knee since service. The Veteran’s treatment records reveal complaints of pain in his left knee in June 2012. He was assessed with knee arthralgia. X-rays revealed mild femorotibial joint space narrowing at that time. X-rays performed in September 2015 revealed mild degenerative changes in the left knee. The Veteran underwent a VA examination in April 2020, at which time he was assessed with left knee arthritis. The examiner issued a medical opinion in August 2020 and concluded that his left knee disability was not incurred in service. The examiner acknowledged that the Veteran had been involved in a motor vehicle accident in 1972. However, there was no evidence that he injured his left knee during this accident. Moreover, although he complained of unspecified knee pain in July 1976, there was no objective evidence of a chronic recurrent knee problem or residual knee pathology in his service-treatment records or current treatment records. Furthermore, the examiner noted that there is no current medical evidence that supports the claim that running, jumping, and bending in the line of military service increases the risk for the development of osteoarthritis of the knee. Rather, his current left knee osteoarthritis most often occurs as a chronic process from wear and tear and is part of the normal aging process. The examiner further noted that radiographs of his right and left knees reveal degenerative changes in both knees, which is a symmetrical finding. If he had sustained an injury to his left knee, the radiographs would have shown posttraumatic arthritis and not osteoarthritis or degenerative changes. Accordingly, the examiner concluded that it was less likely than not that his left knee disability is related to service. After a review of the evidence, the Board finds that service connection is not warranted for the Veteran’s left knee arthritis. In this regard, the first complaint noted in the Veteran’s treatment records regarding his left knee pain was in June 2012. Thus, there is no evidence that his left knee disability manifested to a compensable degree within one year of discharge from service. Moreover, the April 2020 examiner conducted a review of the record and issued an opinion in August 2020 concluding that his current left knee arthritis was not incurred in service, including due to his motor vehicle accident, complaints of knee pain in service, or due to running, jumping, and bending in the line of duty. The Board acknowledges the Veteran’s assertions that his left knee commenced in service and he is competent to report observable knee pain. However, there is no showing of continuity of symptomatology between his active service and his present disability initially documented in June 2012 and September 2015 x-rays. Moreover, the absence of complaints or treatment for a lengthy period of time, in this case over two decades, may be a factor in consideration. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, to the extent that continuing symptoms can be gleaned from the lay statements, there is no evidence that the knee pain in service, the motor vehicle accident, or his military duties led to his current osteoarthritis. As noted by the examiner, if he had sustained an injury to his left knee, the radiographs would have shown posttraumatic arthritis and not osteoarthritis or degenerative changes. Moreover, his current left knee osteoarthritis most often occurs as a chronic process from wear and tear and is part of the normal aging process. Accordingly, the Board finds that the competent medical opinion of record finds no nexus between the current left knee disability and his in-service complaints and the Veteran has not furnished any medical opinions to refute such conclusions. In sum, the Board finds that the preponderance of the evidence is against the award of service connection for the Veteran’s left knee disability. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, including mood disorder, anxiety, depression, adjustment disorder, and posttraumatic stress disorder (PTSD) is remanded. Throughout the rating period on appeal, the Veteran has been assessed with an adjustment disorder, depression, anxiety, and posttraumatic stress disorder. He asserts that his psychiatric disabilities commenced in service due to the pressures of his recruitment job during his second tour of duty. His wife testified that she started to notice his mental limitations in 1989. He indicated that he sought treatment in the 1990s, but the records were destroyed. Pursuant to the remand instructions, a VA examination was performed in April 2020. The examiner assessed the Veteran with unspecified depressive disorder and indicated that he could not deduce the origin or cause of the Veteran’s depression without resorting to speculation given that he was unable to access private mental health records from the 1990s and the VA mental treatment records did not provide any concreate evidence that his current depression was military related. After a review of the evidence, the Board finds that this opinion is insufficient to determine the present claim. In this regard, the examiner failed to discuss or acknowledge the additional mental health diagnoses in his treatment records, including adjustment disorder, anxiety, and PTSD. Moreover, the Veteran is competent to report that he received mental health treatment in the 1990s and the Board finds these statements are credible. Lastly, the examiner did not indicate that he could not provide an opinion without resorting to speculation due to the lack of medical knowledge among the medical community but rather due to the insufficient knowledge of the examiner due to the lack of treatment records, which the Board finds that the Veteran is competent to report. Accordingly, the Board finds that a new VA examination is warranted on remand. 2. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with hypertrophic spondylosis and Intervertebral Disc Syndrome (IVDS) is remanded. Pursuant to the Board’s July 2020 remand instructions, the Veteran underwent a VA examination in July 2020. The examiner noted that during acute pain flare up episodes, the loss of range of motion varied depending on how strenuously his back was used or moved. At its worst, the Veteran could not move due to pain and fatigue and there were other times where loss of range of motion was minimal. However, the examiner did not provide or identify any range of motion loss during the flare up and indicated that general medical knowledge of the Veteran’s back was not reasonable to estimate range of motion loss. He further noted that there was objective evidence of pain on passive range of motion and non-weight bearing but did not provide any correlating range of motion findings. After a review of the evidence, the Board finds that the July 2020 examination is insufficient to determine the present claim. In this regard, pursuant to Sharp v. Shulkin and the remand instructions, the examiner was requested to provide an opinion regarding the range of motion loss during a flare-up and any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. 29 Vet. App. 26, 33 (2017). Moreover, the examiner noted pain on passive range of motion and non-weight bearing but did not provide the correlating range of motion findings pursuant to the remand instructions and Correia v. McDonald. 28 Vet. App. 158 (2016). Accordingly, the Board finds that a remand is warranted in order to assess the severity of the Veteran’s lumbar spine disability. 3. Entitlement to service connection for a bilateral foot disability is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in July 2020. At that time, the examiner assessed the Veteran with bilateral plantar fasciitis, bilateral pes planus, bilateral foot osteoarthritis, and plantar calcaneal spurs. He concluded that his bilateral plantar fasciitis, bilateral foot osteoarthritis, and plantar calcaneal spurs were not related to service or his right ankle disability. However, the examiner failed to provide an opinion as to whether his bilateral pes planus was related to service. The Board notes that bilateral pes planus was not noted during his enlistment examinations and there is no evidence that it is congenital in nature. Accordingly, the Board finds that a new VA examination is warranted on remand. 4. Entitlement to service connection for a right ankle disability, including right achilles tendonitis is remanded; 5. Entitlement to service connection for a left little finger disability is remanded; 6. Entitlement to service connection for a left-hand disability is remanded. Throughout the rating period on appeal, the Veteran has been assessed with right ankle edema and has complained of right ankle pain, left little finger pain, and left-hand pain. Pursuant to the remand instructions, VA examinations were performed in April 2020, at which time the examiner found that the Veteran had no diagnosed disability relating to his right ankle, left little finger, or left-hand. In a recent decision issued by the US Court of Appeals for the Federal Circuit (Court), the Court found that pain alone can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). However, the examiner did not provide an opinion regarding whether his right ankle, left little finger, or left-hand pain resulted in functional impairment that affected earning capacity pursuant to the remand instructions and Saunders v. Wilkie. Id. Accordingly, the Board finds that a new VA examination is warranted on remand. 7. Entitlement to service connection for a total disability rating based on individual unemployability due to service-connected disabilities is remanded. The Veteran submitted a VA Form 21-8940 in April 2020 and indicated that he stopped working in May 2016 due to his service-connected lumbar spine disability. He was a special education teacher and was unable to perform the physical tasks required of the job. An August 2020 opinion indicated that his physical impairments, including degenerative disc disease of the lumbar spine with hypertrophic spondylosis and IVDS, and right and left lower extremity radiculopathy, would pose some limitations related to occupational and employment activities, including prolonged standing, excessive walking, high impact activities, squatting, and kneeling. Although the Veteran does not currently meet the threshold requirement for a TDIU, it is nevertheless VA’s policy to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). The Board requested the RO to refer this matter to the Director, Compensation Service, in its previous remand instructions. However, the RO did not refer the matter. Accordingly, the claim must be referred to the Director, Compensation Service if the Veteran does not meet the schedular requirements after the pending evidentiary development is conducted. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records, including any mental health treatment, from September 2020 to the present. 2. After completion of #1, schedule the Veteran for a VA examination, by an examiner who has not previously provided an opinion in this matter, to determine the nature and etiology of any psychiatric disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner should identify and discuss all psychiatric disorders found on examination and identified during the pendency of this claim (2015), including adjustment disorder, depression, anxiety, and PTSD and respond to the following: is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability had its onset in and/or is otherwise related to his period(s) of active service? (If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service.) If PTSD is diagnosed, the examiner should identify the stressor on which such diagnosis is based. If the examiner does not find a diagnosis of adjustment disorder, depression, anxiety, and/or PTSD then he or she should explain the reasoning in light of the diagnoses contained in his VA treatment records. If service connection is found, the examiner should discuss the impact of the Veteran’s psychiatric disability on his ability to work. The examiner should provide a comprehensive rationale for each opinion provided. The examiner should discuss the statements contained in the record, including the Veteran and his wife’s testimony contained in the January 2019 hearing transcript. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted and recorded. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. The examiner should report and discuss the severity of the Veteran’s service-connected radiculopathy. The affected nerves should be identified and the impairment for radiculopathy should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis. For the Veteran’s IVDS, he or she must also state the total duration of incapacitating episodes due to intervertebral disc syndrome over any given 12-month period, if such episodes have been present at any point during the appeal period. Incapacitating episodes are defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician The examiner should discuss the impact of his lumbar spine and radiculopathy disabilities on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record.   4. After completion of #1, schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral foot, left hand, left little finger, and right ankle disabilities. The claim file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner should identify all bilateral foot, left hand, left little finger, and right ankle disabilities found on examination and/or identified during the pendency of this claim (2015), right ankle edema, bilateral plantar fasciitis, bilateral pes planus, bilateral feet osteoarthritis and plantar calcaneal spurs and respond to the following: A. For any diagnosed bilateral foot, left hand, left little finger, and/or right ankle disabilities, is it at least as likely as not (50 percent probability or more) that they had their onset in and/or are otherwise related to his period(s) of active service? (If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service.) Attention is called to the Veteran’s post-service right foot injury. The examiner should understand that as long as some level of disability existed prior to the intercurrent incident, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries. If the examiner does not find that right ankle edema and/or ankle gastroc equinus diagnoses is not appropriate, then he or she should explain the reasoning in light of the diagnoses contained in his VA treatment records. B. With regard to the right ankle, left-hand, and left little finger, if there is no diagnosed disability, it is at least as likely as not (50 percent probability or more) that any pain reaches the level of a functional impairment of earning capacity? Describe the impairment caused. If so, is it at least as likely as not (50 percent probability or more) that this pain had its onset in and/or is otherwise etiologically related to the Veteran’s period(s) of active duty service? C. With regard to a right and/or left foot disability, only if service connection is found for a right ankle disability and service connection is not directly found for another foot disorder, is it at least as likely as not (50 percent probability or more) that the Veteran’s right and/or left foot disabilities were caused by his right ankle disability? See 06/29/2015, CAPRI, p. 20 (August 2013 VA treatment record noting gastroc equinus with decreased subtalar eversion and hypermobile midtarsal joint causing plantar fasciitis and chronic capsulitis of midtarsal joint). If not, is it at least as likely as not (50 percent probability or more) that the Veteran’s right and/or left foot disabilities have been aggravated (permanently worsened) by his right ankle disability? If aggravation is found, is there medical evidence created prior to aggravation or between aggravation and current level of disability that shows a baseline of the Veteran’s right and/or left foot disabilities prior to aggravation? D. If service connection is found for any of the above listed disabilities, please describe the impact of said disability or disabilities on his ability to work. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of numbers 1 through 4, if the Veteran does not meet the schedular requirements for entitlement to a TDIU, refer the claim for a TDIU to the Director, Compensation Service and notify the Veteran and his representative of such action. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.