Citation Nr: 22040121 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 12-02 018 DATE: July 13, 2022 ORDER Entitlement to service connection for a left foot disability is granted. Entitlement to service connection for a left elbow disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for left wrist disability. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection a right shoulder condition is remanded. Entitlement to total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A left foot disability is as likely as not attributable to service. 2. A left elbow disability is as likely as not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a left elbow disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to December 1975. Initially, the Board notes when this appeal was previously before the Board, the issues of entitlement to service connection for a psychiatric disability, left ankle and right wrist were remanded for further development. The Board notes that, in a June 2020 rating decision, service connection was granted. As the benefits sought on appeal were granted, the Board no longer has jurisdiction over these issues. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board also notes that when this appeal was last before the Board, the issue of entitlement to service connection for a left foot disability was remanded. While service connection for residual scar, dorsal surface of the left foot status post bone removal associated with degenerative arthritis of the left ankle, status post injury has since been granted, the Board notes that service connection for a left foot disability remains on appeal and is addressed below. Service Connection Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). Certain chronic diseases, such as arthritis, may be presumed to be service-connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran appeals the denial of service connection for a left foot and left elbow disability. Initially, the Board notes that during his September 1972 preinduction examination, the Veteran reported a history of foot trouble. At that time, he reported that his feet hurt. Absent this report of history, there are no noted service entries of preexisting foot problems prior to the Veteran's entrance into active duty service. Rather, examination of the feet during the enlistment examination disclosed normal findings. The mere report of history without more is insufficient to establish that the Veteran had a foot disability that preexisted service. The Board finds, therefore, that the presumption of soundness attaches and has not been rebutted by the Veteran's report of history. As such, the Veteran is presumed sound upon entry into service. The Veteran argues that while he was stationed in Korea he injured his left foot and left knee during an organized unit game of combat football. As a result, he claims he has had chronic pain and has had difficulty standing for any length of time. He further argues that he was reinjured while on active duty while on field exercise during a mountain climb. The Veteran claims that he lost his footing, slipped, and fell. The Veteran argues that his left foot problems started in service and has continued since that time. He also argues that his left knee has been aggravated by his left foot disability. Service treatment records disclose that, in May 1973, the Veteran complained of left foot pain. A May 1973 service treatment record shows that the Veteran appeared at a podiatry clinic for surgical removal of a "small piece of dog bone." In May 1975, the Veteran was treated for a bruise on the elbow. A history of contusion to the left elbow was noted. The Veteran complained of numbness to the left hand at the little finger. Ulnar nerve trauma of the left arm was assessed at that time. The December 1975 separation examination disclosed normal findings for the feet and upper extremities. During the August 2010 VA examination, the VA examiner found that there was no clinical diagnosis of the Veteran's left elbow. The examiner reached this conclusion on the basis of the essentially negative examination, negative x ray and the lack of any documentation to relate the Veteran's injuries in service to his present complaints. Therefore, he opined that it was less likely as not that the Veteran's present complaints were related to or aggravated by or caused by his service. During the August 2011 VA examination, the Veteran was diagnosed with left elbow osteoarthritis. The VA examiner opined that the Veteran's left elbow disability was less likely as not caused by or a result of the contusion to the left elbow during service. The examiner reasoned that the Veteran had generalized osteoarthritis with no marked radiographic evidence of fracture or history of traumatic changes to the left elbow. He stated that it was consistent with his generalized disease greatest in areas of marked wear and tear, and that no spurring was identified and there was no swelling on examination. In a December 2011 statement, the Veteran's private physician, Dr. C stated: After reviewing his military medical records, I believe that his ongoing joint problems are related to his previous military employment and his present medical problems are service connected. His joint problems stem from continued knee ankle and elbow conditions that are documented in his past records. As stated in his medical records he suffered from left ulnar nerve trauma which caused left hand and finger pain. It is also noted in his record episodes of swelling and pain involving his ankles and feet. Dr. T stated in March 2012 that the Veteran had numerous orthopedic conditions and that it was his opinion that these current conditions are at least as likely connected to his active duty service in the United States Army. In September 2012, Dr. C further expressed: After reviewing his military medical records, I believe that [the Veteran's] ongoing joint problems and pain [are] related to his previous military employment and his present medical problems are service connected. The dates and specific injuries in question include 1. May 30, 1973 laceration to left foot, 2. November 29, 1973 left ankle trauma related to playing basketball resulting in chronic arthralgia, 3. May12, 1975 trauma to left elbow resulting in left ulnar nerve neuropathy, and 4. April 12,1974 right wrist trauma/fracture related to combat football. The specific names of his ongoing medical problems include ulnar nerve neuropathy, osteoarthritis, rheumatoid arthritis, and arthralgia. I believe that the above named medical problems were with 100 percent of medical certainty related to his military service. His joint problems stem from continued knee, ankle and elbow conditions that are documented in his past records. As stated in his medical records, he suffered from left ulnar nerve trauma which caused left hand and finger pain. It is also noted in his record episodes of swelling and pain involving his ankles and feet. During the January 2013 VA examination, the VA examiner opined that the left elbow condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran was evaluated for the left elbow while on active duty in May 1975. He noted that there was a question of nerve impairment, however, there was no specific diagnosis or follow up while on active duty. The examiner stated that there was no evidence of chronic problems with the left elbow while on active duty. The January 2013 VA examiner further opined that the left foot and left ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that review of service treatment records, physical examination and review of radiographs do not support the Veteran's claims. During the April 2019 VA examination, the VA examiner opined it was less likely that the current claimed left elbow condition was incurred in service. The VA examiner reasoned that in-service record dated 5/12/1975 reported a history of contusion left elbow but the records were silent for over 30 years. It was noted that current findings do not show evidence of chronic degenerative changes such as spurring or joint space narrowing on x-ray. The Veteran was afforded another VA examination in April 2020 for the left foot. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted the Veteran's entrance examination documented foot trouble and stated "feet hurt occ." The separation exam does not mention or document any residuals from his claimed foot injury. The examiner stated that it has been over 45 years since his left foot laceration and there is no evidence of a chronic left foot condition related to his acute left foot laceration injury. The examiner reasoned that during service, the condition was acute only and that there was no evidence of chronicity of care. A nexus has not been established. In April 2021, the Veteran expressed that he was required to play combat ball around three to four times a week for physical training and that he had to climb mountains during his time in Korea where he fell on top of his knee at one point. According to the Veteran, he did not go to the doctor for this or many other injuries but instead he "bore through the pain due [his] youth." In the April 2021 VA examination for the left foot, the VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that, "the claimant medical record as seen before does not show chronic or repeated left foot problems during active duty or shortly after, while medical records do show foreign body removal from the left foot in May 1973, this appears self-limited as there are no follow-up notes documenting continuation or worsening of foot condition from this. The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The same VA examiner, on the same day, opined that the condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. In so finding, the examiner stated that the Veteran checked yes for foot trouble and stated feet hurt in September 1972. This, the examiner stated, means that he had foot trouble before active duty. The examiner noted that January 2013 report that the scar on top of his left foot is from a childhood accident and that a May 1973 treatment record showed pain in left foot, 2 cm incision at dorsal surface of 5th metatarsal left foot, bone removal. The examiner found that most likely the Veteran had both childhood accident as well as a kind of left foot procedure during active duty. In July 2021, private examiner, Dr. S found that the Veteran "sustained a left elbow injury while in the service. This injury presented with neurologic involvement as his symptoms included numbness and tingling, which persisted for years thereafter. He therefore, sustained a left elbow strain with tendonitis. This condition continues until this day. Therefore, given the above, it is as least as likely as not that [the Veteran's] chronic elbow strain and tendonitis is the direct result of his injury sustained while in the service." Dr. S further stated that "the C&P examiner references that [the Veteran] had a history of left foot injuries prior to service. However, there is no record that substantiates this position. There is also no entrance exam which states that his foot condition pre-dated service, and thus it does not clearly and unmistakably pre-date service. There is also mention of [the Veteran] sustaining injuries to his left knee subsequent to service in a 1986 accident. The mechanisms of this injury was, however, due to his knee giving out, according to a January16, 1986 note by Dr. Wilson. It is also clear that this [Veteran's] left foot sprain occurred while he was in the service." In this case, the Board has been presented with positive and negative evidence regarding the etiology of the Veteran's left foot and left elbow disability. To the extent that the April 2021 VA examiner rendered opinions regarding the etiology of the Veteran's left foot disability, the Board finds that the opinions lack probative value. In this regard, the Board notes that the opinions are conflicting as the examiner simultaneously rendered both positive and negative opinions on this matter. Furthermore, as noted earlier, the Board finds that a preexisting left foot disability has not been shown by the record. Thus, the presumption of soundness attaches. As the opinions are premised upon the Veteran having a preexisting left foot disability which has been found to not be the case, the opinions are not probative. The Board has weighed the positive and negative evidence of record, and in resolving reasonable doubt, the Board finds in favor of the claims for entitlement to service connection. In making this determination, service treatment records show complaints and treatment for the left foot and left elbow. The Veteran has also presented credible statements asserting that his left foot and left elbow problems started in service and has continued since that time. The credible lay statements of record in conjunction with the positive medical opinions from Dr. S and Dr. C place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for a left foot and left elbow disability is granted. REASONS FOR REMAND The Veteran appeals the denial of service connection for left knee, right knee, left hip, right hip, left wrist, right ankle, left shoulder, and right shoulder conditions. The Veteran argues that while he was stationed in Korea he injured his left foot and left knee during an organized unit game of combat football. As a result, he claims he has had chronic pain and has had difficulty standing for any length of time. He further argues that he was reinjured while on active duty while on field exercise during a mountain climb. The Veteran claims that he lost his footing, slipped, and fell. The Veteran argues that his left knee has been aggravated by his left foot disability. In July 2021, private physician, Dr. S found that: [The Veteran] reported significant injuries to his bilateral knees while in the service which resulted in ongoing discomfort. He further was seen and had objective findings consistent with a left foot sprain that has continued throughout today per his report. As a result, he developed an abnormal coping gait, which modified his center of balance and added stress to his knees and all superior structures to his knees. His original injuries and the ongoing compensatory gait resulted in chronic strains of his bilateral knees. He also eventually noted pain in his bilateral hips and was ultimately diagnosed with degenerative joint disease of his hips. Given that [the Veteran's] bilateral knees were injured while he was in the service and he developed an abnormal gait as a result thereof, it is as least as likely as not that his chronic knee strains and hip degeneration are the direct result of his bilateral knee injuries that occurred while he was in the service. While Dr. S indicates that the Veteran's left foot has caused him to have an abnormal gait, this finding does not seem to be factually correct according to the record. In so noting, the record generally shows that the Veteran's gait has been described as "steady" and "normal." The Board is mindful, however, that treatment records have noted on a few occasions a mild/antalgic gait caused by the right great toe and ankle, for example in September 2005 and January 2006 an antalgic gait was noted when being treated for the right great toe and in December 2008 it was noted that he walked with an antalgic gait when treated for the right ankle. The records do not support Dr. S's factual assertion, however, of an abnormal gait due to the left foot. As the opinion of Dr. S is not factually supported by the record on this matter and the record is insufficient to properly address the claims, the Board finds a remand is warranted so that a VA examination and opinion can be obtained. The Veteran also appeals the denial of service connection for a left wrist disability. During the August 2010 VA examination, the VA examiner found that there was no clinical diagnosis of the Veteran's left wrist. The examiner reached this conclusion on the basis of the essentially negative examination, negative x ray and the lack of any documentation to relate the Veteran's injuries in service to his present complaints. Therefore, he opined that it was less likely as not that the Veteran's present complaints were related to or aggravated by or caused by his service. The April 2020 VA examiner opined that the Veteran's left wrist condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that all service treatment records and post-discharge medical records available in the claims file was reviewed. The examiner reasoned, in part, that "no evidence available in the strs or post-discharge records diagnosing or to support a chronic left wrist injury residual." The Board notes, however, that the Veteran now argues that his left wrist is secondary to his now service connected left elbow. In July 2021, Dr. S found that the Veteran's left elbow condition forced him to improperly rely on his left wrist, which caused it to become damaged. Dr. S further stated that the left elbow injury persists to this day, so even if it is not the direct cause of his left wrist injury, it aggravates his left wrist condition. A VA opinion has not been obtained addressing this theory of entitlement. As such, a remand is warranted on this matter. With regard to the right ankle, in an April 2019 VA examination, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's right ankle disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the in-service records were silent for a right ankle condition. In July 2021, Dr. S stated that since sustaining his falls in the service, the Veteran's right ankle has continued to cause significant pain which would wax and wane for the years thereafter. Dr. S stated that the Veteran reports limitation in his range of motion and no intervening injuries. Therefore, given the above, Dr. S opined that it was as least as likely as not that the Veteran's right ankle sprain occurred while he was in the service. While differing opinions have been rendered on this matter, the Board finds that reasoning provided by the examiners are essentially conclusory and thus inadequate to properly address the claim. As such, a remand is warranted for another opinion on this matter. With regard to the claim for service connection for a left and right shoulder disability, in July 2021 Dr. S stated that the Veteran reports that he developed abnormal upper extremity coping mechanisms that resulted in shifting weight to his shoulders. After years of incorporating this dysfunction, he was diagnosed with bilateral shoulder degeneration. Given the above, Dr. S opined that it was as least as likely as not that the Veteran's bilateral shoulder degeneration is the result of his left elbow injury. A review of the record shows that the Veteran has not been afforded a VA examination for this claim. In light of the Veteran's statement and the opinion of Dr. S, the Board finds a remand is warranted to afford the Veteran a VA examination for proper adjudication of the claim. Lastly, as a decision on entitlement to service connection for the above disabilities may impact the claim for entitlement to TDIU, the Board finds that the issues are inextricably intertwined and all are remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Associate with the claims folder updated treatment records. 2. Schedule the Veteran for a VA examination, by an orthopedic specialist, i.e. someone trained and skilled in this area of medicine, to address the claims for service connection for disabilities of the left knee, right knee, left hip, right hip, left wrist, right ankle, left shoulder and right shoulder. The electronic claims file must be made available to and be reviewed by the examiner. For each left knee, right knee, left shoulder, right shoulder, left hip, right hip, left wrist and right ankle disorder diagnosed in the record and/or upon examination, the examiner is requested to opine: (a) whether it is an approximately equal or greater probability that the Veteran's left knee, right knee, left shoulder, right shoulder, left hip, right hip, left wrist, and right ankle conditions had its onset in service or is otherwise related to service. The examiner should accept as true (even though not documented) the Veteran's report of injuring his left knee during an organized unit game of combat football during service and that he was reinjured while on active duty while on field exercise during a mountain climb and discuss whether such injuries were of sufficient severity to result in any current demonstrated disability. In doing so, the examiner must consider: the Veteran's claims that he sustained multiple falls during service to include his claim that he injured his left knee during an organized unit game of combat football during service and that he was reinjured while on active duty while on field exercise during a mountain climb and The various opinions rendered by Dr. S in July 2021 (b) whether it is an approximately equal or greater probability that the Veteran's left wrist, right shoulder and/or left shoulder was caused by, is due to, or is the result of the service-connected left elbow. In doing so, the examiner must consider the July 2021 opinion of Dr. S that the Veteran's left elbow condition forced him to improperly rely on his left wrist, which caused it to become damaged and that the left elbow injury persists to this day, so even if it is not the direct cause of his left wrist injury, it aggravates his left wrist condition, and that he developed abnormal upper extremity coping mechanisms that resulted in shifting weight to his shoulders. (c) whether it is an approximately equal or greater probability that the Veteran's left wrist has been aggravated, i.e. a medically discernible increase in disability, even if temporary, by the service-connected left elbow. In doing so, the examiner must consider the July 2021 opinion of Dr. S hat the Veteran's left elbow condition forced him to improperly rely on his left wrist, which caused it to become damaged and that the left elbow injury persists to this day, so even if it is not the direct cause of his left wrist injury, it aggravates his left wrist condition. The examiner is requested to discuss the extent of left elbow dysfunction and whether such dysfunction, if any, is of sufficient severity to result in any functional impairment of the left wrist, left shoulder and/or right shoulder. (d) whether it is an approximately equal or greater probability that the Veteran's knee and hip disabilities were caused by, are due to, or are the result of the service-connected left foot. (e) whether it is an approximately equal or greater probability that the Veteran's knee and hip disabilities have been aggravated, i.e. a medically discernible increase in disability, even if temporary, by the service-connected left foot. In doing so, the examiner must address the July 2021 opinion of Dr. S that the Veteran's left foot disability has caused an abnormal coping gait, which modified his center of balance and added stress to his knees and all superior structures to his knees and that he eventually noticed hip pain. The examiner must also consider the Veteran's claim that his left knee has been aggravated by his left foot disability. The examiner is requested to discuss the extent of gait abnormality caused by the left foot disability and whether such gait disturbance, if any, is of sufficient severity to result in any functional impairment of the knees and hips. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, lay statements, and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issues to include the intertwined issue of entitlement to TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.