Citation Nr: 21010110 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-07 018 DATE: February 24, 2021 ORDER Service connection for a right elbow scar is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for post-traumatic chondromalacia of the right patella with medial meniscal tear, crepitus and some laxity of the lateral collateral and anterior cruciate ligaments (right knee disorder) is remanded. Entitlement to an evaluation in excess of 10 percent, to include on an extra-schedular basis, for right wrist navicular carpal bone fracture residuals with fusion (right wrist disorder), is remanded. Entitlement to service connection for a lumbar spine disorder is remanded Entitlement to service connection for peripheral nerve damage of the right lower extremity, to include as secondary to a lumbar spine disorder, is remanded. Entitlement to service connection for peripheral nerve damage of the left lower extremity, to include as secondary to a lumbar spine disorder, is remanded. Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. FINDING OF FACT The Veteran’s right elbow scar, diagnosed during the course of his appeal, is related to service. CONCLUSION OF LAW A right elbow scar is proximately due to or the result of service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1969 to January 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in April 2018. A transcript of that hearing has been associated with the claims file. In August 2018, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board also notes that the Veteran’s appeal had originally included the issues of entitlement to service connection for a left knee disorder and scars, to include scars of the left hip and right elbow. However, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for a left knee disorder and scars of the right wrist, left hip, and right knee in an October 2020 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, those matters are no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). However, the Board notes that the Veteran’s right elbow scar claim was not granted in that decision, and thus, remains on appeal. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After review of the medical evidence, the Board finds that the Veteran has been diagnosed with a right elbow scar during the appeal and that scar is related to service. The Veteran’s service treatment records show that the Veteran suffered from multiple contusions, to include to the right elbow, following an in-service motorcycle accident in July 1971. The Veteran’s January 1973 separation examination noted a right elbow scar. The Veteran was afforded a VA examination in connection with his right elbow claim in January 2015. During that examination, the VA examiner noted the presence of a scar on the right elbow measuring 4 cm in length and 0.1 cm wide. The Veteran was then afforded VA examinations for his right elbow and scar claims in March 2019. That examiner found no right elbow scar. In a September 2020 VA addendum opinion, another VA examiner then opined that the right elbow scar was caused by service. In support of that opinion the examiner stated that service treatment records indicate contusions and abrasions to the area and the scar was noted in the separation examination. Based on the foregoing, there is evidence showing that the Veteran had a right elbow scar during the appeal period. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). The evidence also indicates that the right elbow scar resulted from the Veteran’s in-service motorcycle accident. Therefore, the Board finds that service connection is warranted for a right elbow scar. REASONS FOR REMAND The Board finds that a remand is required for further development. With regard to the Veteran’s right knee disorder claim, the Board notes that VA medical records for a June 2016 right knee arthroscopy procedure are not associated with the claims file. They are relevant for the Veteran’s knee disorder claim, especially as the Veteran has reported a history of a medial meniscus condition. As such, these records should be associated with the claims file, in addition to any relevant diagnostic imaging reports of the right knee, to include the MRI report referenced during a May 2018 VA medical appointment. The Board notes that the Veteran was afforded a VA examination for his right wrist disorder in March 2019, which addressed the severity and manifestation of the disorder. However, the Board notes that the Veteran testified that his right wrist condition was affecting his grip during his April 2018 hearing. In order to adequately evaluate the Veteran, to include on an extraschedular basis, the Board finds that a VA medical opinion as to whether or not the Veteran’s right wrist disorder is causing issues with his grip and/or other functional wrist/hand limitations, due to his right wrist disorder, is necessary. Following the Board’s August 2018 remand, the Veteran was also afforded a VA examination in March 2019 in connection with his claim for service connection for a lumbar spine disorder. The examiner opined that there was no causal relationship between the Veteran’s current back disorder and his in-service motorcycle accident. However, the Board notes that in July 2018, the Veteran submitted a medical opinion statement from Dr. C.M. opining that the Veteran’s altered gait contributed to his lumbar spine disorder. It is not clear from that opinion whether Dr. C.M. considered all of the medical evidence of record, to include the Veteran’s post-service lumbar spine injuries. Thus, the Board finds that a VA medical opinion is necessary in this case to determine whether an altered gait due to service-connected left and/or right knee disorders, could have caused or aggravated the current lumbar spine disorder. Additionally, the Board notes that the Veteran’s claims file includes notes that the Veteran was undergoing evaluation for workers’ compensation in connection for his lumbar spine disorder. As such, these workers’ compensation and/or employment records should be obtained and associated with the claims file, as they may be relevant the Veteran’s claim. The Board also finds that the Veteran’s claims for peripheral nerve damage to the left and right lower extremities are inextricably intertwined with the claim being remanded herein, as the Veteran has claimed that his peripheral nerve damage/disorder is secondary to his lumbar spine disorder. For this reason, the lumbar spine disorder claim must be resolved prior to resolution of the claims for peripheral nerve disorders. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. The Board also finds that the Veteran should be afforded new VA examinations for his right elbow and left hip disorders. The Veteran was afforded a VA examination for each disorder in March 2019. While there were no previous diagnoses of record for these disorders, the March 2019 examiner diagnosed right elbow strain and left hip strain. She then submitted opposing medical opinions for the diagnoses; including positive nexus opinions within the examination reports and negative nexus opinions in the medical opinion section of the reports. An addendum was obtained for the right elbow disorder in August 2019, wherein the 2019 VA examiner provided a negative nexus opinion. The AOJ then obtained an addendum opinion from a different VA examiner in September 2020 in order to rectify the contrasting medical opinions. That examiner opined that there was no diagnosis for the right elbow or left hip disorders. He based his opinion on prior VA examinations and x-rays. However, the March 2019 VA examiner had found diagnoses that were based upon functional limitation. Thus, the Board finds that the Veteran should be afforded new VA examinations for his right elbow and left hip disorders, which consider any functional disability caused by pain, and provide a clear medical opinion statement and rational. Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA medical records should be obtained and associated with the claims file, to include June 2016 right knee arthroscopy records and diagnostic imaging reports for the right knee, to include the MRI referenced during the Veteran’s May 2018 VA medical appointment. 2. The AOJ should attempt to obtain any workers’ compensation records. If these records cannot be obtained, the claims file should be properly documented. 3. After the above development has been completed, the Veteran should be afforded a VA medical opinion to determine the scope of the Veteran’s right wrist disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran may be experiencing difficulties with his grip and/or other functional limitations of the wrist/hand due to his right wrist disorder. In rendering this opinion, the examiner should consider the Veteran’s April 2018 hearing testimony. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After directives #1-2 have been completed, the Veteran should be afforded a VA medical opinion to determine the nature and etiology of any lumbar spine disorder that may be present. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran’s current lumbar spine disorder is caused by or aggravated by his service-connected right knee and/or left knee disabilities, to include any altered gait resulting from those disabilities. In rendering this opinion, the examiner should address the medical opinion statement submitted by Dr. C.M. dated July 2018. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing directives #1-2, the Veteran should be afforded a VA examination (different than the examiner that provided the March 2019 examination) to determine the nature and etiology of any right elbow disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current right elbow disorder, to include functional loss due to pain, that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should address the March 2019 VA examination report diagnosing the Veteran with right elbow strain in his or her opinion. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing directives #1-2, the Veteran should be afforded a VA examination (different than the examiner that provided the March 2019 examination) to determine the nature and etiology of any left hip disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left hip disorder, to include functional loss due to pain, that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should address the March 2019 VA examination report diagnosing the Veteran with left hip strain in his or her opinion. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.