KNEE IMPAIRMENT OF

Summary

The veteran, who served in the U.S. Army from April 2002 to May 2005, appeals the denial of service connection for left knee and left ankle disabilities, and the remand of his right ankle Achilles tendonitis claim. The veteran contends his left knee and ankle conditions resulted from in-service parachute jumps. Service treatment records confirm parachute jumping and subsequent knee pain, and the Board found it reasonable that ankle issues also occurred. A December 2016 private report from Dr. J.H. noted the veteran's reports of right ankle disability developing during service concurrently with left ankle symptoms. A June 2010 VA examination provided a negative nexus opinion for the left ankle, deeming it less likely than not service-related due to lack of in-service documentation, which the Board found inadequate. However, a February 2017 private opinion from Dr. O.M. found it more likely than not that the current left knee and ankle disabilities are related to past trauma from parachute jumping and long marches. The Board found the veteran's testimony regarding knee and ankle pain following parachute jumps to be credible and probative, noting that his STRs documented knee complaints. Finding the evidence evenly balanced, the Board resolved doubt in the veteran's favor, granting service connection for left knee and left ankle disabilities. The claim for right ankle Achilles tendonitis was remanded for a new VA examination to assess current severity and manifestations, considering updated rating criteria, flare-ups, and functional loss, as the veteran reported worsening symptoms and the prior exam was six years old.

Rationale

Service treatment records confirm parachute jumping and subsequent knee pain.; Conflicting medical opinions were reconciled.; Evidence found evenly balanced; doubt resolved in veteran's favor.

Full Decision Text

Citation Nr: 18120715
Decision Date: 07/24/18	Archive Date: 07/24/18

DOCKET NO. 14-03 043
DATE:	July 24, 2018
ORDER
Entitlement to service connection for a left knee disability is granted.
Entitlement to service connection for a left ankle disability is granted.
REMANDED
Entitlement to an initial compensable disability rating for right ankle Achilles tendonitis is remanded.
FINDINGS OF FACT
1. The evidence is evenly balanced as to whether the Veteran’s left knee disability is etiologically related to his active service.
2. The evidence is evenly balanced as to whether the Veteran’s left ankle disability is etiologically related to his active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for a left knee disability have been met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017).
2. The criteria for service connection for a left ankle disability have been met.  38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Army from April 2002 to May 2005.  In April 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.
Service Connection
Entitlement to service connection for a left knee and left ankle disability
The Veteran contends that his disabilities of the left ankle and left knee are due to in-service parachute jumps.  The record reflects a current diagnosis for bilateral Achilles tendonitis and left knee patellar tendonitis.  Thus, a current diagnosis is established for both a left knee and left ankle condition.  The Veteran’s service treatment records (STRs) also reflect that he was involved in parachute jumping and subsequently had some knee pain.  While his STRs do not explicitly note his left ankle in relation to these jumps, the Board finds it reasonable that such activity would also affect the ankle.  Additionally, a December 2016 private report from Dr. J.H. reflects the Veteran’s reports that he developed a right ankle disability during service and that at that time, he also developed symptoms of his left ankle disability.  Notably, the Veteran is already service connected for his right ankle for the same condition of his left ankle.  Thus, an in-service event or injury is conceded for both the left knee and left ankle.
As to a nexus, there are conflicting medical opinions of record.  In June 2010, the Veteran underwent a VA examination for his ankles and left knee, and a medical opinion was provided.  The VA examiner opined that it is less likely than not that the Veteran’s left Achilles tendon disability and left ankle disability are related to his service.  The examiner reasoned that the Veteran’s STRs are silent for complaints, treatment or diagnosis for either condition.  However, the opinion is improperly predicated on a lack of documentation in the medical record.  See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  As such, the opinion is not adequate.  
In February 2017, the Veteran submitted a private opinion from his treating physician, Dr. O.M.  In the opinion, Dr. O.M. indicates that the Veteran has current pathology of both the left knee and left ankle.  Dr. O.M. noted that the Veteran reported repeated trauma in service sustained from parachute jumping and long marches.  Dr. O.M. opined that it is more likely than not that the Veteran’s current left knee and left ankle disabilities are related to past trauma.  
Additionally, the Veteran has credibly indicated that he participated in numerous parachute jumps during service and has had left knee and ankle pain since.  See Hearing Transcript at pg. 5.  The Veteran is competent to attest to observable symptoms such as knee and ankle pain following a physical activity.  His STRs also note knee complaints subsequent to this activity, and, as noted, the Board finds it reasonable that he would have also sustained ankle trauma.  As such, the Board finds the Veteran’s statements probative.  
The Board finds that the evidence is evenly balanced as to whether the Veteran’s left knee and left ankle disabilities are related to his active service.  Resolving any reasonable doubt in favor of the Veteran, the Board finds that both disabilities can be linked to the Veteran’s active service.  Accordingly, a nexus is conceded, and service connection
 and ankle pain since.  See Hearing Transcript at pg. 5.  The Veteran is competent to attest to observable symptoms such as knee and ankle pain following a physical activity.  His STRs also note knee complaints subsequent to this activity, and, as noted, the Board finds it reasonable that he would have also sustained ankle trauma.  As such, the Board finds the Veteran’s statements probative.  
The Board finds that the evidence is evenly balanced as to whether the Veteran’s left knee and left ankle disabilities are related to his active service.  Resolving any reasonable doubt in favor of the Veteran, the Board finds that both disabilities can be linked to the Veteran’s active service.  Accordingly, a nexus is conceded, and service connection for left ankle Achilles tendonitis and left knee patellar tendonitis is granted.  38 U.S.C §§ 1110, 5107(b).
REASONS FOR REMAND
Entitlement to an initial compensable disability rating for right ankle Achilles tendonitis is remanded.
The Board finds that further development is necessary prior to adjudicating the claim for an increased rating for the Veteran’s right ankle disability.
The record reflects that the Veteran’s latest VA examination for his right ankle was the June 2010 examination.  However, the Veteran has suggested that his condition has worsened since his last examination.  At the April 2018 hearing, he indicated that his right ankle flares up and also rolls, which causes him to fall.  He has also indicated that his pain can be as high as a 9 (presumably on a scale of 1-10).  The December 2016 private report from Dr. J.H. also indicates that the Veteran’s right foot bothers him when he walks up the stairs.  As the Veteran indicates that his symptoms have worsened since his last exam, which was six years ago, the Board finds that a new VA examination is also appropriate to assess the current severity of the Veteran’s right ankle disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997).
Moreover, the rating criteria for the musculoskeletal system have significantly changed since the Veteran’s last VA examination.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Court has also held that, “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  38 C.F.R. § 4.59 states that, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”  As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions.
Additionally, as the Veteran reports flare-ups of the right ankle, the Board notes in advance that the Court recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups.  Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017).  In that case, the Court held that a VA examiner must attempt to elicit information from the record and from 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 could not be given.  The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  Id.  
As such, in the VA examination conducted per this remand, if the examiner determines that he or she is unable to estimate motion loss in terms of degrees during periods of flare-ups regarding the Veteran’s right ankle disability, the examiner must review the record and attempt to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given.  The examiner must then still provide an explanation of any inability to estimate motion loss in terms of degrees.
The matter is REMANDED for the following action:
1. Have the Veteran identify any additional treatment records regarding his right ankle disability.  Obtain any identified VA records
 at large, rather than insufficient knowledge by the individual examiner.  Id.  
As such, in the VA examination conducted per this remand, if the examiner determines that he or she is unable to estimate motion loss in terms of degrees during periods of flare-ups regarding the Veteran’s right ankle disability, the examiner must review the record and attempt to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given.  The examiner must then still provide an explanation of any inability to estimate motion loss in terms of degrees.
The matter is REMANDED for the following action:
1. Have the Veteran identify any additional treatment records regarding his right ankle disability.  Obtain any identified VA records that have not already been obtained.  For any identified private treatment records, provide the Veteran with an authorization to release private records and if received, obtain these records.
2. After obtaining any additional records, schedule the Veteran for a new VA examination with an appropriate examiner to ascertain the current severity and manifestations of his service-connected right ankle disability.  
The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished.
The examiner must consider the Veteran’s lay statements and provide all information required for rating purposes. 
i) Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness.  
ii) Additionally, the examiner must test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
iii) Importantly, in regard to additional functional loss due to flare-ups, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given.  The examiner must also provide an explanation of any inability to estimate motion loss in terms of degrees.  
3. The AOJ should review the examination report to ensure that it is in compliance with this remand.  If a report is deficient in any manner, the AOJ should implement corrective procedures.
4. After completing the above actions, readjudicate the claim on appeal.  If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).
 
GAYLE STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Smith, Associate Counsel