Citation Nr: 18139632
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-26 224
DATE:	September 28, 2018
ORDER
Entitlement to service connection for bilateral knee disability, status post arthroscopic surgery, is denied.
REMANDED
Entitlement to service connection for a cardiac disability, to include paroxysmal supraventricular tachycardia, is remanded.
Entitlement to service connection for an acquired psychiatric disability is remanded.
Entitlement to a compensable initial rating for degenerative joint disease of the sacroiliac joint and lumbar spine is remanded.
FINDING OF FACT
The most probative evidence of record does not demonstrate that the Veteran has a knee disability, status post arthroscopic surgery, that is related to reported knee pain in service. 
CONCLUSION OF LAW
The criteria for service connection for bilateral knee disability, status post arthroscopic surgery, are not met.  38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1995 to May 1998, with additional Reserve service.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  
1. Entitlement to service connection for bilateral knee disability, status post arthroscopic surgery
The Veteran contends that her current knee symptoms are related to the knee pain noted in her service treatment records (STRs).
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
The Board concludes that the Veteran has a current diagnosis of status post bilateral arthroscopic knee surgery without residuals.  See November 2012 Knee and Lower Leg Conditions Disability Benefits Questionnaire.
The Veteran’s service treatment records (STRs) contain complaints of chronic left knee pain in November 1995, indicate that the Veteran reported bilateral knee arthritis in February 1998, and find right knee injury in March 1998.  
A November 2012 VA examination diagnosed the Veteran with post arthroscopic surgery of her bilateral knees without residuals per physical.  The examiner noted, as medical history, that the service medical records reflect that she sustained a left knee injury in July 1995, but that there were no medical records regarding a left knee injury during that time.  It was noted that she had been referred to an orthopedist following a November 13, 1995 clinic visit; that the physician noted that the x-rays were negative and that she had been to physical therapy.  It was also noted that she underwent an unknown left knee surgery in September 1998, but that there were no operative notes in the service medical record or claims file.  It was additionally indicated that she reported a work related left knee sprain in April 2012 after a fall at work.  The examiner stated that there were no service medical records regarding a right knee injury or treatment.  It was noted that the Veteran reported she had had a twisting injury resulting in a torn meniscus, for which she had surgery in November 2006.
Clinical examination revealed that the Veteran reported no flare-ups that impact the function of the knee and/or lower leg.  There was no limitation of right knee range of motion, and no objective evidence of painful right knee motion, including following repetitive use testing.  There was no limitation of left knee range of motion, and no objective evidence of painful left knee motion, including following repetitive use testing.  There was no functional loss and/or functional impairment of the knee and lower leg.  It was noted that the Veteran had tenderness or pain to palpation of the joint line tissues of the left knee.  Muscle strength testing was normal.  Anterior, posterior, and medial-lateral stability test findings were normal, bilaterally.  There was no evidence or history of recurrent patellar subluxation/dislocation.  It was noted there were no residual signs or/or symptoms due to a meniscectomy of the left knee performed in 1998 or of the right knee performed in 2006.  X-ray examination in November 2012 did not reveal degenerative or traumatic arthritis, nor evidence of patellar subluxation.  The diagnostic imaging impression was mild lateral tilting of both patella, more evident on the right, and most evident on the 90 degree flexion sunrise image.  There was no other significant osseous or joint abnormality of the right and left knees.
The examiner opined that the bilateral knee disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  The rationale stated was that although there are no 1995 STRs for the initial left knee injury, her symptoms were noted later the same year.  The examiner found it curious that the Veteran had surgery by a private physician shortly after discharge from service, but that there were no operative report or progress notes in the claims file.  The examiner inaccurately stated that there were no STRs regarding a right knee injury or treatment.  In April 2013, the RO asked the examiner for an addendum opinion to discuss the lack of medical records noted in the November 2012 opinion rationale.  In April 2013, the examiner explained that the Veteran had a left knee injury in July 1995 and was seen by an orthopedist in November 1995.  The examiner wrote that the Veteran separated from service in May 1998, and reported surgery in September 1998, which would have been within the presumptive period.  The examiner opined that she would need to examine the operative report and progress notes from that surgery to determine if the surgery was related to the in-service injury and not the result of intervening injury.  The examiner did not select any of the options for a nexus opinion associated with this rationale addendum.
In this case, the record contains a positive nexus opinion followed by a confusing addendum that appears to indicate that the clinician was now unable to come to a conclusion because the September 1998 private treatment records were not of record, and the clinician was unsure whether the surgery was related to the knee pain reported in service versus some intervening injury in the four months between separation from service and the surgery.  There is no evidence of an intervening injury in the Veteran’s treatment records, and the examiner did not point to any evidence supporting this new speculation concerning intervening injury.  The Board notes that the July 2013 addendum does not address the report of bilateral knee arthritis in the physician summary section of a Report of Medical History completed in February 1998, when the Veteran indicated a past/current medical history of bilateral trick or locked knees, or the March 1998 clinical report of right knee injury.  As to the November 2012 rationale indicating that it is suspicious that the records of the Veteran’s September 1998 knee surgery are not associated with the claims file, the Board notes that the Veteran submitted authorization for VA to request the private treatment records related to her September 1998 knee surgery, but a December 2012 notation indicates that although a private address was listed on the letter of record, VA accidently faxed the request to the Dallas VA Medical Center.  It is thus unclear whether the records request was ever submitted to the facility identified by the Veteran.  The lack of these private treatment records did not prevent the examiner from providing a positive opinion in November 2012.  
Nevertheless, the Board notes that, while the opinions and competing rationales are confusing, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has the disability for which benefits are being claimed.  Although the evidence establishes that the Veteran is status post bilateral knee arthroscopy, there is no demonstration of residual disability for which service connection may be established.  Significantly, clinical examination in November 2012 specifically noted that status post bilateral knee arthroscopy was without residuals, and that there was no functional loss and/or functional impairment of the knee and lower leg.  Although the Veteran had tenderness or pain to palpation of the joint line tissues of the left knee, the reported findings on clinical examination at that time revealed no abnormal findings for either knee as to range of motion, stability or muscle strength.  There was no pain on range of motion of both knees. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "'disability' in § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d at 1363, 1368, 1369.  However, as discussed above, the record does not establish that the Veteran has chronic disability as a residual of bilateral knee arthroscopy.
Because the evidence does not establish that the Veteran has chronic disability as a residual of bilateral knee arthroscopy during the pendency of the appeal, the Board concludes that service connection is not warranted, and no discussion of the remaining elements necessary to establish service connection is not warranted. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). 
As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim is denied.  38 U.S.C. § 5107.
REASONS FOR REMAND
1. Entitlement to service connection for a cardiac disability, to include paroxysmal supraventricular tachycardia, is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a cardiac disability because no VA examiner has opined whether the Veteran’s current paroxysmal supraventricular tachcyardia is related to her in-service October 1995 complaint of chest pain and dizzy spells, November 1995 complaint of dizzy spells and lower right sided chest pain among other symptoms, December 1995 complaint of difficulty breathing with chest pain and dizziness, and June 1996 complaint of complications breathing associated with chest pain.  Upon remand, a VA examination should be scheduled.  
March 2012, June 2014, and October 2014 VA treatment records indicate that there are relevant outstanding private treatment records.  A remand is required to allow VA to obtain authorization and request these records.
Evidence indicates that there may be outstanding relevant VA treatment records.  A June 2014 VA treatment note indicates that at one point the Veteran was treated for her cardiac disability at the VA Medical Center in Little Rock, Arkansas.  Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal.  A remand is required to allow VA to obtain them.
An August 2014 VA treatment note indicates that there may be outstanding and relevant Social Security Administration (SSA) records.  A remand is required to allow VA to request these records.
An August 2014 VA treatment note indicates that there may be outstanding and relevant Social Security Administration (SSA) records.  A remand is required to allow VA to request these records.
2. Entitlement to service connection for an acquired psychiatric disability is remanded.
The Veteran’s representative argued in the May 2016 brief associated with the VA Form 9 that the Veteran had preexisting posttraumatic stress disorder (PTSD) associated with stressors that occurred prior to service, which was aggravated by the Veteran’s experiences in service.  The representative also raised the argument that the Veteran had an acquired psychiatric disability caused or aggravated by a service-connected disability.  The Veteran must be afforded the opportunity to have the RO consider these theories of entitlement in the first instance, prior to Board appellate adjudication of the issue.  Upon remand, a supplemental opinion should be obtained that considers these theories of entitlement.
An August 2014 VA treatment note indicates that there may be outstanding and relevant Social Security Administration (SSA) records.  A remand is required to allow VA to request these records.
3. Entitlement to a compensable initial rating for degenerative joint disease of the sacroiliac joint and lumbar spine is remanded.
In the November 2012 VA examination, the Veteran identified relevant outstanding private treatment records.  A remand is required to allow VA to obtain authorization and request these records. 
The Veteran’s representative argued in the May 2016 brief that the Veteran suffers from radicular pain associated with her service-connected back disability, which is not discussed in the VA examination.  The Board notes that the Veteran reported numb feet in a February 2014 VA treatment note.  Upon remand, a new examination should be obtained that considers these complaints of radiculopathy.  
The matters are REMANDED for the following action:
1. Ask the Veteran to complete a VA Form 21-4142 for W.K., the facility where the Veteran underwent ablation in 2009 per a March 2012 VA treatment note; H. Clinic, which is identified as provider of cardiac care by a June 2014 VA treatment note; Dr. S., the private cardiologist referenced in an October 2014 VA treatment note, and the private physician in Texas who treated the Veteran for her back pain per the November 2012 VA examination. Make two requests for the authorized records from any private facility identified by the Veteran, unless it is clear after the first request that a second request would be futile.
2. Obtain all of the Veteran’s VA treatment records from the Central Arkansas Veterans Healthcare System.
3. Contact the Social Security Administration and request a copy of all records and decision associated with any claim for disability benefits.
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cardiac disability, including paroxysmal supraventricular tachycardia.  The examiner must opine whether the Veteran has a cardiac disability that is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including her multiple reports of chest pain and dizziness.  Specifically, the Veteran reported chest pain and dizzy spells in October 1995, reported dizzy spells and lower right sided chest wall pain in November 1995, reported difficulty breathing and chest pain and dizziness in December 1995, complained of complications breathing associated with chest pain in June 1996, reported pain or pressure in the chest while denying heart trouble or palpation or pounding heart in February 1998, reported heart trouble/chest pain in a February 1998 dental note, and denied chest pain, palpitation, and heart trouble or murmur in May 1999.  Although the Veteran’s STRs attribute her chest pain to asthma or other disabilities, an April 2013 VA treatment finds that the Veteran’s heart palpations are associated with shortness of breath and chest pain.  The examiner should consider the possibility that the reports of chest pain and difficulty breathing or dizziness in service were early incidents of heart palpitations that were not correctly identified.  
Any opinion offered must be supported by a complete rationale.
5. Forward the Veteran’s claims file to an appropriate clinician to obtain addendum opinion regarding the following matters.  If the clinician feels that a new examination is necessary to provide the requested opinions, such an examination should be scheduled.
(a.)  Did the Veteran have an acquired psychiatric disorder that clearly and unmistakably (undebatably) preexist service?  The Veteran’s representative has argued that the stressors that occurred prior to service resulted in pre-existing PTSD.  If the clinician finds that the Veteran’s acquired psychiatric disorder did clearly and unmistakably preexist service, the examiner must also opine whether it was clearly and unmistakably NOT aggravated by service.  The clinician is advised that in February 1998 the Veteran reported frequent trouble sleeping and loss of memory, but denied depression or excessive worry and nervous trouble of any sort.  The clinician should consider whether the report of trouble sleeping and loss of memory are indications of aggravated psychiatric disorder. All clear and unmistakable evidence referenced in support of any opinion must be clearly identified.
(b.) Does the Veteran have an acquired psychiatric disorder that is at least as likely as not (50 percent or greater probability) caused by or aggravated beyond its natural progression by service-connected degenerative joint disease of the sacro iliac joint and lumbar spine? 
(c.) If the examiner finds that the Veteran’s acquired psychiatric disorder was not caused or aggravated by the service-connected back disability, he or she should opine as to whether the Veteran’s acquired psychiatric disorder is at least as likely as not (50 percent or greater probability) caused by or aggravated beyond its natural progression by the disability for which the Veteran is currently seeking service connection, cardiac disability to include paroxysmal supraventricular tachycardia. The clinician is advised that a June 2012 VA treatment note indicated anxiety disorder related to general medical condition of atrial fibrillation.
Each opinion offered must be supported by a complete rationale.  
6. Schedule the Veteran for an examination to determine the current severity of his back disability.  The examiner must, to the extent possible, test the range of the Veteran’s back motion, including on active motion, passive motion, and with pain, on weight-bearing and without weight-bearing.  The examiner must also 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 all symptoms and functional impairment due to the back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living.  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).  The clinician is to address the report of the Veteran’s representative in a May 2016 brief that the Veteran suffers from radicular pain and the February 2014 VA treatment note of numb feet.
7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.  If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.  

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Budd, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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