KNEE IMPAIRMENT OF

JAMES SPRINGER · 2022 · Case ID: 22026609

MIXED

Summary

The veteran served from June 2008 to June 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated October 2013, following previous remands in June 2018 and August 2021. The veteran sought service connection for a right knee disability, shin splints of both legs, bilateral hip disabilities, a hand disability including a cyst, and a back disability. The Board granted service connection for a right knee disability, finding the evidence in approximate balance and applying the benefit-of-the-doubt rule. The veteran's lay statements regarding right knee pain since service were found credible and consistent with degenerative arthritis, despite a lack of contemporaneous treatment records. Service connection for shin splints of both legs was denied, as the Board found the evidence weighed against a current diagnosis or a nexus to service, and the benefit-of-the-doubt rule was inapplicable. The claims for bilateral hip disabilities, a hand disability, and a back disability were remanded for additional development. The Board found the VA opinions for the hip and hand claims inadequate, as they did not sufficiently consider the veteran's lay statements or address the continuity of symptoms. The back claim was remanded for an opinion on whether the veteran's spinal abnormalities clearly preexisted service or were aggravated by it, and if not, whether they are related to service.

Rationale

Current diagnosis of degenerative arthritis of the right knee.; Veteran's lay statements credible and consistent with symptoms since service.; Evidence in approximate balance, benefit-of-the-doubt applied.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

15-05 352

Full Decision Text

Citation Nr: 22026609
Decision Date: 05/05/22 Archive Date: 05/05/22

DOCKET NO. 15-05 352
DATE: May 5, 2022

ORDER

Service connection for a right knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for shin splints of the right leg is denied.

Service connection for shin splints of the left leg is denied.

REMANDED

Service connection for a right hip disability is remanded.

Service connection for a left hip disability is remanded.

Service connection for a hand disability, to include a cyst, is remanded.

Service connection for a back disability is remanded.

FINDINGS OF FACT

1. The Veteran has experienced right knee pain related to degenerative arthritis since her separation from service.

2. The evidence of record persuasively weighs against finding that the Veteran has had shin splints of the right leg at any time during or approximate to the pendency of the claim.

3. The evidence of record persuasively weighs against finding that the Veteran has had shin splints of the left leg at any time during or approximate to the pendency of the claim.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for shin splints of the right leg are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for shin splints of the left leg are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from June 2008 to June 2012.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in October 2013.

In June 2018 and August 2021, the Board remanded this case to the AOJ for additional development. The case was subsequently returned to the Board.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d).

Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

1. Service connection for a right knee disability

The Veteran contends that her knee pain began in boot camp in November 2008 and continued throughout service and afterward. See her October 2012 claim, September 2021 VA examination.

The Board notes that service connection has already been established for a left knee disability.

The Veteran has a current diagnosis of degenerative arthritis of the right knee as evidenced by the September 2021 VA examination and a May 2015 VA X-ray study. Arthritis is an enumerated condition under 38 C.F.R. § 3
3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

1. Service connection for a right knee disability

The Veteran contends that her knee pain began in boot camp in November 2008 and continued throughout service and afterward. See her October 2012 claim, September 2021 VA examination.

The Board notes that service connection has already been established for a left knee disability.

Service treatment records show that the Veteran was seen for complaints of left knee pain in November and December 2008. In November 2008, she denied right knee pain. In December 2008, she denied physical trauma while playing a sport and denied trauma to the knees. No abnormalities of the right knee were noted on examination. The diagnosis was patellofemoral syndrome. In a late May 2012 report of medical history completed prior to separation from service, the Veteran denied a history of arthritis, rheumatism, or bursitis, knee trouble, bone, joint or other deformity, and impaired use of the legs. A June 2012 report of medical examination completed at separation reflects that the Veteran declined an examination; the examiner stated that the Veteran's medical records were reviewed, and she was fit for full duty and fit to separate. In a June 2012 health record, signed by the Veteran and the examiner, she was informed that she was evaluated because of her planned separation from active duty service, and had been found physically qualified to separate or retire, which meant that no medical condition had been noted that disqualified her from performance of her duties or that warranted disability evaluation processing.

An April 2015 VA primary care note reflects that the Veteran complained of severe pain in both knees. On examination of the knees, there was minimal effusion bilaterally, joint line tenderness, normal range of motion and crepitus. The diagnostic impression was bilateral constant knee pain. A May 2015 VA X-ray study of both knees showed minimal osteophyte formation in the right knee. The diagnostic impression was minimal degenerative changes in the knees with possible remote Osgood-Schlatter disease of the left knee. Subsequent VA medical records reflect treatment for chronic pain in the knees.

On VA examination of the left knee in April 2018, the examiner diagnosed degenerative arthritis of the left knee, but did not provide a diagnosis of a right knee disability, despite finding that a May 2015 X-ray study of the right knee documented arthritis of the right knee. On examination, there was limitation of motion of the right knee.

On VA examination in August 2019, the examiner indicated that current imaging studies did not document arthritis in the right knee, and did not diagnose a right knee disability. There was limitation of motion of the right knee, but the examiner opined that the range of motion was normal for the Veteran because thigh adiposity limited full flexion. In an addendum August 2020 opinion, the examiner opined that the history and physical findings did not reveal a specific condition referable to the right knee.

At the September 2021 VA examination, the Veteran reported bilateral knee pain since 2008. The September 2021 VA examiner provided a negative medical opinion with regard to the right knee disability, and the rationale was partly based on a finding that there was no evidence to suggest the Veteran's claimed condition began within one year of separation from military service, and that the service treatment records did not indicate a significant right knee condition.

While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms of right knee pain since service. The Veteran is competent to report that she experienced symptoms of right knee pain during service and afterward. Her statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's degenerative arthritis.

As the evidence is in approximate balance, the benefit-of-the-doubt rule is applicable, and the claim for service connection for a right knee disability is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Service connection for shin splints of the right leg and left leg

The Veteran contends that her shin splints began in November 2008 during combat training and never improved
probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's degenerative arthritis.

2. Service connection for shin splints of the right leg and left leg

The Veteran contends that her shin splints began in November 2008 during combat training and never improved. See her October 2012 claim.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of shin splints of either leg and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service treatment records show that in November 2008, the Veteran complained of shin pain in both legs, and was assessed with shin splints. In a late May 2012 report of medical history completed prior to separation from service, the Veteran denied a history of bone, joint or other deformity, or impaired use of the legs. A June 2012 report of medical examination completed at separation reflects that the Veteran declined an examination; the examiner stated that the Veteran's medical records were reviewed, and she was fit for full duty and fit to separate. In a June 2012 health record, signed by the Veteran and the examiner, she was informed that she was evaluated because of her planned separation from active duty service, and had been found physically qualified to separate or retire, which meant that no medical condition had been noted that disqualified her from performance of her duties or that warranted disability evaluation processing.

On VA examinations in April 2018, August 2019, and September 2021, the examiners found no current shin splints (medial tibial stress syndrome). The August 2019 examiner opined that although the service treatment records revealed a diagnosis of shin splints (left), medical documentation after service did not reveal this to be an ongoing issue. The examiner stated that although the Veteran may have experienced shin splints (left) while in service, there is no documentation of this on her exit examination and no documentation of this after military service. It is less likely than not that shin splints (left) were caused by military service. The September 2021 VA examiner also opined that it is less likely than not that shin splints were incurred in or caused by military service. Further, despite treatment for other medical conditions, VA treatment records do not contain a diagnosis of shin splints.

As the competing evidence is not in approximate balance, or nearly equal, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Service connection for a right hip disability and a left hip disability

The Veteran contends that her bilateral hip pain began during service in March 2009 after running a physical fitness test, when she was told she had popping hip syndrome, and that her symptoms of hip pain and popping have continued since service. See her October 2012 claim, August 2019 VA examination.

Service treatment records show that the Veteran was seen for complaints of left knee pain in December 2008. She denied physical trauma while playing a sport and had no trauma to the knees. She had no hip joint pain, no hip joint stiffness, and no snapping sensation in the hip. The examiner indicated that the hips had normal appearance, normal motion, and no pain on motion. The diagnostic assessment was patellofemoral pain of the left knee, and the examiner noted that she had tightness in the hips and hamstrings and needed to work on some reconditioning. Stretching was recommended. In January 2009, the Veteran was seen for complaints of pain in the bilateral lower abdominal muscles and anterior hips. She reported bilateral abdominal pain at rest which increased with physical activity. The diagnostic assessment was a hernia, a possible "sports hernia" related to increased physical activity. The service treatment records
to the knees. She had no hip joint pain, no hip joint stiffness, and no snapping sensation in the hip. The examiner indicated that the hips had normal appearance, normal motion, and no pain on motion. The diagnostic assessment was patellofemoral pain of the left knee, and the examiner noted that she had tightness in the hips and hamstrings and needed to work on some reconditioning. Stretching was recommended. In January 2009, the Veteran was seen for complaints of pain in the bilateral lower abdominal muscles and anterior hips. She reported bilateral abdominal pain at rest which increased with physical activity. The diagnostic assessment was a hernia, a possible "sports hernia" related to increased physical activity. The service treatment records are negative for complaints or diagnosis of a hip disability.

When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that a new examination is necessary.

2. Service connection for a hand disability, to include a cyst, is remanded.

The Veteran contends that her hand pain began in January 2012, her hand started to really hurt in Afghanistan, and she was previously told that she might have a cyst in her hand. She asserts that her hand pain is due to typing as an administrative specialist in service. See her October 2012 claim, August 2019 VA examination. In her original service connection claim, she did not identify which hand she was claiming. At the August 2019 VA examination, she reported that she was diagnosed with a ganglion cyst on the right hand while in the military in approximately 2009 or 2010, and wondered if typing contributed to the cyst. At the September 2021 VA examination, the Veteran reported that she did not recall exactly when she began to experience right-hand pain.

In connection with the Board's August 2021 remand, the Veteran underwent a VA examination in September 2021; however, as will be explained, the opinion provided is insufficient to adjudicate the Veteran's claim for service connection for a hand disability. The Veteran was diagnosed right hand strain, and the examiner ultimately opined that her claimed hand disability to include hand pain with cyst on the hand was less likely than not incurred in or caused by military service. The rationale was that there is no evidence to suggest the Veteran's claimed conditions began within one year of separation from military service, her service treatment records did not indicate right hand pain during military service, there is no objective evidence to support the diagnosis of a right-hand cyst condition, and the medical history and physical examination are most consistent with right hand strain. Furthermore, on separation examination in May 2012, the Veteran did not complain of the claimed conditions at that time, and the examiner did not diagnose any medical conditions during the separation examination. The examiner stated that there is no objective evidence to suggest the Veteran sustained a hand condition during military service, and concluded that there is no basis for a nexus of pain or injury to support the presence of any of the claimed conditions during or as a result of military service. Unfortunately, the examiner's supporting rationale appears to be based solely on the lack of objective evidence showing chronic symptomatology during and following service, and it does not reflect consideration of her lay statements concerning the onset and continuity of her hand symptoms. See Dalton, supra; Miller, supra. Similar to her claimed bilateral hip disabilities, the Board notes that the Veteran field her claim for service connection for a hand disability less than a year after discharge.

When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr, supra. Given that the medical evidence of record fails to
there is no basis for a nexus of pain or injury to support the presence of any of the claimed conditions during or as a result of military service. Unfortunately, the examiner's supporting rationale appears to be based solely on the lack of objective evidence showing chronic symptomatology during and following service, and it does not reflect consideration of her lay statements concerning the onset and continuity of her hand symptoms. See Dalton, supra; Miller, supra. Similar to her claimed bilateral hip disabilities, the Board notes that the Veteran field her claim for service connection for a hand disability less than a year after discharge.

When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr, supra. Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that a new examination is necessary.

3. Service connection for a back disability is remanded.

A VA examination and medical opinion regarding the thoracolumbar spine were obtained in September 2021. The Board finds that the September 2021 VA medical opinion is inadequate, because the examiner did not provide an opinion as to whether the Veteran has a preexisting spine disability that was aggravated by service.

In this regard, the Board notes that VA X-ray studies of the lumbosacral spine in May 2015 and September 2021 both showed partial sacralization of L5 on the right, and a September 2021 X-ray study of the thoracic spine showed remote congenital irregularities of the thoracic spine.

Sacralization is defined as anomalous fusion of the fifth lumbar vertebra to the first segment of the sacrum so that the sacrum consists of six segments. See Dorland's Illustrated Medical Dictionary, 32nd ed., 2012, at 1662.

Since the September 2021 VA examiner only provided a medical opinion with regard to the diagnosis of thoracolumbar strain, but did not provide an opinion regarding the abnormal X-ray findings noted above, an addendum medical opinion is required.

Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. On remand, the AOJ should attempt to obtain them.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from March 2020 to the present.

2. Schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of any disabilities of her bilateral hips and hand. The examiner(s) should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail.

a) Regarding the Veteran's claimed hip disability, the examiner should clearly identify all current disabilities of the bilateral hips, noting that pain alone may be considered a disability when it results in functional loss. In this regard, a recent September 2021 VA examination report noted a diagnosis of bilateral hip strain.

Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service.

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. In particular, the examiner should consider the Veteran's report of having bilateral hip pain since service. In this regard, the Veteran's claim for service connection for bilateral hip disabilities was received in October 2012, approximately four months after discharge. If, from a medical perspective, the Veteran's statements are consistent or inconsistent with the injuries described, please indicate as much and explain why this is the case. The Veteran's lay statements cannot be rejected solely due to the lack of contemporaneous medical evidence.

b) Regarding the Veteran's claimed hand disability, the examiner should clearly identify all current disabilities of the hand, noting that pain alone may be considered a disability when it results in functional loss.

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. In particular, the examiner should consider the Veteran's report of having right hand pain since service. In this regard, the Veteran's claim for service connection for a hand disability was received in October 2012, approximately four months after discharge. If, from a medical perspective, the Veteran's statements
disability when it results in functional loss.

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. In particular, the examiner should consider the Veteran's report of having right hand pain since service. In this regard, the Veteran's claim for service connection for a hand disability was received in October 2012, approximately four months after discharge. If, from a medical perspective, the Veteran's statements are consistent or inconsistent with the injuries described, please indicate as much and explain why this is the case. The Veteran's lay statements cannot be rejected solely due to the lack of contemporaneous medical evidence.

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's back disability, to include partial sacralization of L5 on the right, and congenital irregularity of the endplates in the thoracic spine (see May 2015 and September 2021 X-ray studies) clearly and unmistakably (undebatable) preexisted the Veteran's service?

If the examiner finds the back disability did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service?

If the examiner finds that the back disability either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service.

Provide a rationale to support the opinion.

In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

4. Thereafter, readjudicate the issues on appeal.

James Springer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. L. Wasser, 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.

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