Citation Nr: 21026996 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-56 754 DATE: May 4, 2021 ORDER Entitlement to service connection for a left ankle condition is granted. Entitlement to service connection for a right ankle condition is granted. Entitlement to service connection for bilateral retropatellar pain condition of the knees is granted. REMANDED Entitlement to an initial rating greater than 10 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. The competent evidence of record demonstrates that the Veteran's left ankle disability likely had its onset in service. 2. The competent evidence of record demonstrates that the Veteran's right ankle disability likely had its onset in service. 3. The competent evidence of record demonstrates that the Veteran's bilateral knee retropatellar pain condition was likely incurred during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for bilateral knee retropatellar pain condition have been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from July 2001 to September 2002 during the Gulf War Era. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service connection for the Veteran's lumbosacral strain disability was granted and the Veteran was awarded a 10 percent disability rating, effective January 14, 2014. Claims for service connection for a right ankle condition, a left ankle condition, and for bilateral retropatellar pain condition were denied. In December 2014, the Veteran filed a notice of disagreement (NOD) requesting an increased initial rating for his service connected lumbosacral strain disability, and appealing the denial of service connection for his right ankle condition, a left ankle condition, and denial of new and material evidence for a claimed bilateral retropatellar pain condition of the knees. The Veteran requested review and hearing by a Decision Review Officer (DRO). In November 2015, a DRO hearing was scheduled, but in December 2015, the Veteran withdrew his request for a hearing. He asked that the record remain open for sixty days in order to submit medical evidence and further, requested that a decision be made on the evidence of record. In September 2017 the RO issued a Statement of the Case (SOC) denying the claims, and in October 2017 the Veteran filed a substantive appeal to the Board Form 9 and so the four issues are on appeal before the Board. The RO has characterized the service connection claim for bilateral retropatellar pain syndrome as an application to reopen the previously-denied claim for service connection in July 2009. However, the issue is not a new and material evidence claim because additional relevant service treatment records (STR's) were associated with the claims file since the prior final decision in July 2009, requiring reconsideration of the claim in accordance with 38 C.F.R. § 3.156 (c). Regarding the claimed bilateral retropatellar pain syndrome denied in July 2009, the Veteran's complete STR's were not associated with the Veteran's record until August 2014. The Veteran's representative raised the issue that the personnel records were not in the file, and the Veteran's DD 214 was associated with the file in January 2020. These relevant service department records were not of record at the time of the July 2009 denial and require reconsideration, whereby the claim for service connection for bilateral knees is evaluated as an original claim under 38 C.F.R. § 3.156 (c) and not evaluated as a new and material evidence claim to reopen. The claims for increased initial rating greater than 10 percent for lumbosacral strain disability, and service connection claims for a right ankle condition, a left ankle condition, and service connection for bilateral retropatellar pain condition will be evaluated accordingly. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service Connection 1. Entitlement to service connection for a left ankle condition. 2. Entitlement to service connection for a right ankle condition. The Veteran contends that he suffers from current pain and swelling in both ankles, and that his bilateral ankle disorder started while the Veteran was in service and has continued since service. The Veteran testified in December 2020 that he experienced ankle symptoms such as daily swelling and crushing pain that makes it difficult to walk. In addition, the Veteran described that it was necessary for him to discontinue his employment driving a truck due to pain in his ankles, knees and back. He contended that he did not have any issues with his ankles prior to service and injured both of them when he fell in service. The Veteran contended that the pain and swelling has been continuous and ongoing since service, and that he injured both his ankles and his bilateral knees in this same falling incident. The Veteran's STR's reflect that he sought treatment for his ankles during service. In July 2002, the Veteran sought medical treatment and the notes described chronic knee pain and PFS (patellofemoral syndrome) along with ankle swelling that increased when standing. Additionally, it is noted that the Veteran was pending administrative separation from service for his PFS. The separation exam dated August 7, 2002 reflected right knee with right ankle swelling at item 73 notes. Further at item 78, the notes reflect that the Veteran was asked to return with documentation for final diagnosis and disposition of knee and ankle pain and the Veteran did not return the requested documentation. A note dated April 3, 2003 at item 20 indicated that the Veteran never returned with documentation of final diagnosis and disposition of his knee and ankle pain: "P.E. (physical examination) closed as incomplete. Not qualified." There is no mention of any ankle disorder in the Medical Board separation narrative reports. The Veteran was separated from service for medical reasons. In December 2001, a Medical Board Summary described the Veteran's chief complaint as chronic bilateral knee pain with additional narrative information regarding the Veteran's medical condition at separation. In January 2016 a private physician Dr. JMD, MD reviewed the Veteran's records and discussed the Veteran's bilateral swelling and pain in the ankles, along with functional limitation ("stiffness on range of motion" with only "30 to 40 degrees of plantar flexion.") He opined that based on the medical information reported in the records, it appeared that the Veteran developed an inflammatory condition in his ankles while in military service. The examiner reflected that there is a relative scarcity of medical findings however the examiner articulated that the Veteran had a normal exam when he entered service and then did not have any normal exams on his ankles continuously after discharge from service. On that basis, Dr. JMD, MD opined that it is as likely as not that the Veteran's current bilateral ankle pain and swelling is related to his military service. In January 2017 the Veteran was afforded a VA examination addressing his claimed bilateral ankle disability. The report reflected that the Veteran reported pain and swelling in both ankles. Unfortunately, the examination was not adequate for the following reasons. First, the information in the report is not internally consistent. Under the description of the history including onset and course of the condition, the examiner reflected the Veteran's diagnosis as "strain." This is contradictory to a statement reflecting that the Veteran did not have a current diagnosis for his claimed bilateral ankle disorder. In addition, the examiner indicated ankle instability or dislocation is suspected bilaterally, however no further explanation for this response was provided. Further, the examiner did not address the Veteran's contention that his bilateral ankle disorder has existed continuously since service. There is some question in the record as to whether the Veteran suffers from a current diagnosis of a bilateral ankle disability. However, the Veteran has continuously reported up to the time of the Hearing in December 2020 that he experienced pain and swelling in both ankles. Moreover, while the January 2017 examiner did not provide a conclusive diagnosis of a disability in either ankle, it is clear from the examination report that the Veteran has functional impairment of the ankles. Pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, given the Veteran's credible reports of ankle pain along with functional impairment identified during the 2017 VA examination, the evidence is sufficient to find that the Veteran suffers from a current bilateral ankle disability, as he has consistently reported ankle pain and swelling since his time in service. Based on the record as outlined above, to include the opinion from Dr. JMB attributing the Veteran's ankle complaints to service, the Board finds that the evidence is at least in relative equipoise as to the existence of a current disability, an in-service onset, and a nexus between the in-service bilateral ankle complaints and the current disability. As the evidence is in relative equipoise, the Board must resolve doubt in the Veteran's favor and accordingly, service connection for the Veteran's bilateral ankle disorder is granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for bilateral retropatellar pain condition of the knees. The Veteran is seeking entitlement to service connection for a bilateral retropatellar pain condition of the knees. The Veteran was treated during service for bilateral knee disorders. The Veteran testified at a Hearing in December 2020 that prior to service, he did not have any issues with his knees. He stated that he fell forward with a group, scratched his hands catching his fall, and after that his knees bothered him. He testified further that there were no other knee injuries after his time in the service. The Veteran was separated from service for medical reasons, with "retropatellar pain syndrome both knees" enumerated as the sole and primary diagnosis. A December 2001 Medical Board Summary described the Veteran's chief complaint as chronic bilateral knee pain. The history of the Veteran's illness was described as "(h)istory of recurring bilateral knee pain, which began in an early onset of his basic training." A note in the STR's at item 20 indicated that the Veteran was asked to provide additional medical information regarding a final diagnosis and disposition of his knee and ankle pain. The file records indicate that the Veteran never returned the requested documentation. The note concludes: "P.E. (physical examination) closed as incomplete. Not qualified." In July 2009, the RO denied the Veteran's claimed service connected retropatellar pain syndrome. Medical records were associated with the Veteran's file in April 2014. A medical treatment record (dated January 2014) reflected that the Veteran's chronic bilateral knee pain was diagnosed as bilateral degenerative joint disease right and left knees. A March 2014 record mentioned bursa, bursal effusion. In November 2014 the Veteran was afforded a VA pension examination. The examiner noted that he was unable to render an opinion with regard to claimed service connection of any bilateral knee condition due to conflicting information in the claims file concerning whether or not the Veteran suffered from a bilateral knee condition that pre-dated his enlistment in the Navy. The examiner reviewed the Veteran's STR's and referenced a November 2001 note indicating that the Veteran disclosed to a provider that he had a history of knee pain prior to enlisting in the Navy. In November 2014, the examiner reported that the Veteran suffered from bilateral knee meniscal tear and bilateral knee joint osteoarthritis, all diagnosed in 2014. An MRI from 2014 of both knees indicated the following results: patellar chondromalacia bilaterally, degenerated medial meniscus bilaterally, and degenerated ACL without a tear in the right knee. With regard to the referenced condition of the Veteran's knees upon entry to service, there is no clear and unmistakable evidence to indicate that the Veteran suffered from any unresolved bilateral knee disability at the time of entry into active duty. The Veteran's service entrance examination does not note a diagnosed knee disability. Accordingly, the Board finds the Veteran to be sound upon entry. A record dated November 2001 indicated that the Veteran mentioned he experienced problems with his knees prior to enlistment. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Mere reports of knee pain sometime before service alone is insufficient to rebut the presumption of soundness. The presumption of soundness has attached because the Veteran's enlistment examination was normal, and no issues with his knees were noted. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304 (b). In January 2016, an independent medical opinion was completed by Dr. JMD, MD. He opined that the Veteran's retropatellar pain syndrome in both knees resulted from his military service because the Veteran was treated in service in 2001 and again shortly after discharge. The physician reviewed and provided an overview of some of the Veteran's STR's, noting that while in service, the Veteran received medical care and experienced relapse due to his bilateral knee pain. The Veteran was separated from service for medical reasons. The examiner also reviewed the Veteran's medical treatment records that occurred after service. The physician did not indicate that he examined the Veteran, however, the examiner opined that the Veteran's multiple treatments and relapse while in service, and additional treatment in the subsequent year after service, established a nexus with regard to his bilateral knee condition. In January 2017, the Veteran was afforded a VA examination. The report reflected that joint osteoarthritis was diagnosed in both knees. The examiner did not support that the Veteran's claimed bilateral knee disability was related to service, reasoning that the passage of time between separation and when the Veteran next sought treatment for his bilateral knees was too great. The practitioner examined the Veteran and reviewed the claims file. The Board finds that the examiner's opinion in January 2016 provided a rationale for the grant of service connection that is consistent with the evidence. The Veteran credibly reported a history of knee pain since service, and clearly sustained an injury to his knee during service. The evidence is at least in equipoise as to the existence of a current disability, an in-service onset, and a nexus between the in-service bilateral knee treatments and the current disability. As the evidence is in relative equipoise, the Board must resolve doubt in the Veteran's favor. Service connection for the Veteran's bilateral knee disorder is granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an initial rating greater than 10 percent for lumbosacral strain is remanded. The Veteran contends that his service connected lumbosacral strain disability has worsened. He testified at a hearing before the undersigned Veteran's Law Judge (VLJ) in December 2020. The Veteran explained that he experienced problems when attempting to get up, when bending down, and when sitting for long periods of time. He testified that he experienced pain over a larger section of his lower back than previously, and also experienced flare ups. During a flare up, he explained that it was sometimes necessary to contact the doctor at the VA medical center and ask for medication. In addition, the Veteran explained that sometimes he experienced pain that radiated down one or both of his legs. While the Board sincerely regrets the delay, a remand is required before the Board may make a determination on the merits of the outstanding increased rating claim. A more current VA examination is needed with regard to the Veteran's service-connected lumbosacral strain disability. The Veteran was last provided a VA examination in January 2017 and in December 2020 the Veteran alleged that his service-connected disability has worsened. When a claimant asserts that the severity of a disability has increased, and the evidence of record is otherwise insufficient to evaluate the appeal, an additional VA examination is appropriate. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service connected back disability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his lumbosacral strain. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbosacral strain. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A full rationale must be provided for all stated medical opinions that reflect consideration of all lay and medical evidence. In explaining his or her opinion, the examiner should address the Veteran's statements, including his testimony at the December 2020 Hearing. The examiner is advised that the Veteran is competent to provide information about events which are observable to an ordinary layperson. If the examiner agrees or disagrees with any evidence of record, he or she should thoroughly explain the medical reasons for his or her agreement or disagreement. 3. The RO is requested to carefully review the opinions requested and to implement corrective procedures if any report is found deficient. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.M. Schneider 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.