judge_norm: K R FLETCHER

condition: hip

text: Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). [is remanded]

text:
Citation Nr: 1203000
Decision Date: 01/27/12    Archive Date: 02/07/12

DOCKET NO.  08-10 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania

THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for degenerative joint disease of the left hip, to include as secondary to the service-connected disabilities.

2.  Entitlement to service connection for degenerative joint disease of the left hip, to include as secondary to service-connected disabilities.

3.  Entitlement to service connection for generalized arthritis, to include as secondary to service-connected disabilities.

4.  Entitlement to an increased rating for lumbosacral strain.

5.  Entitlement to an increased rating for left knee disability.

6.  Entitlement to increased rating for right knee strain.

7.  Entitlement to increased rating for degenerative joint disease of the right knee.

8.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Veteran, S.M., and J. C.

ATTORNEY FOR THE BOARD

S. Finn, Counsel

INTRODUCTION

The Veteran served on active duty from July 1973 to May 1977.

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the RO in Philadelphia, Pennsylvania.

In August 2010, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  At the hearing the Veteran was granted a 60-day abeyance period for the submission of additional evidence.  That period of time has lapsed, and no additional evidence has been received.

The issues of entitlement to service connection for depression and a speech impediment, to include on a secondary basis, have been raised by the record as indicated on page 20 of the hearing transcript, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.

The issues of entitlement to service connection for generalized arthritis and left hip disability, entitlement to increased ratings for lumbosacral strain and bilateral knee disabilities, and entitlement to TDIU are addressed in the REMAND that follows the ORDER section of this decision.

FINDINGS OF FACT

1.  An unappealed March 2000 rating decision previously denied service connection for degenerative joint disease of the left hip.

2.  The evidence received since the March 2000 decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim.

CONCLUSION OF LAW

New and material evidence has been received to reopen the claim of service connection for degenerative joint disease of the left hip. 38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board reopens the Veteran's claim of service connection for degenerative joint disease of the left hip and remands it for further development.  As such, no discussion of VA's duties to notify and assist is necessary.

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. �� 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. � 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a) .

The Court recently interpreted the language of 38 C.F.R. � 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. � 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Here, the RO initially denied the Veteran's original claim of service connection for degenerative joint disease of the left hip in a March 2000 rating decision.  The Veteran was duly notified of this action and apprised of his appellate rights.  He did not appeal the decision in a timely manner and it became final.

The evidence of record at the time of the March 2000 rating decision consisted of service treatment records, lay statements, and VA and private medical records.  The service treatment records, in part, reflect that the Veteran was immobilized in a cylinder cast three weeks postoperatively after he was struck by an automobile.  He was diagnosed with fracture of the left patella and lumbosacral spine, but no apparent left hip disability.  A February 2000 VA examination report notes a diagnosis of degenerative joint disease of the left hip; however, the examiner opined that there was no relationship between the Veteran's left hip disability and his service-connected disabilities.  The RO denied service connection for a left hip disability because, in part, of no nexus to service or service-connected disability.

Evidence added to the record since March 2000 includes VA Medical Center treatment records, private medical records, written statements, employment records, and lay statements and testimonies.

Specifically, a September 2002 VA treatment record notes that it was possible that the Veteran's hip disability was due to his change in gait, as a result of his service-connected knee disability.

A January 2003 VA treatment record notes that the Veteran had osteoarthritis of the hips probably from the changed mechanics secondary to knee osteoarthritis.  (See also February 2006written statement from Dr. C. A. (diagnosing the Veteran with severe osteoarthritis of the hips)).

The VA treatment records and private medical records suggesting that the left hip disability was caused or aggravated by the service-connected disabilities are new as it was not previously of record.  It is also material as it provides a competent opinion on the question of whether the Veteran's left hip disability is related to a service-connected condition.  The medical evidence is not cumulative or redundant of the evidence previously of record.  Moreover, the medical evidence is sufficient to raise a reasonable possibility of substantiating the claim.

Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a left hip disability.  However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the claim can be addressed.

ORDER

New and material evidence having been received, the claim of entitlement to service connection for degenerative joint disease of the left hip is reopened; to this extent only, the appeal is granted.

REMAND

INCREASED RATINGS

With regard to the low back and bilateral knee disabilities, the Veteran indicated that his disabilities have worsened since his last VA examination in March 2010, as indicated on pages 7-8 of the hearing transcript.  Also, he indicated that he had a left knee and hip replacement surgery approximately two months prior to the hearing.  (See Hearing Transcript p. 7).  The Veteran used a walker at the hearing.  (Id. at 9, 11).  His physician also told him that he needed surgery on his right knee and was scheduled for additional surgery in the near future.  (Id. at 12, 14, and 15).  When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination.  Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  The Veteran should accordingly be scheduled for an examination to determine the current severity of his low back and knee disabilities.

The hearing transcript also notes that the Veteran has had ongoing private and VA treatment since his last examination.  The record also reflects that the Veteran has applied for Social Security Administration (SSA) disability benefits, but was denied in 2008.  (See Hearing Transcript, p. 19).  The Board finds that these records would be pertinent to the claims on appeal See Murincsak v. Derwinski, 2 Vet. App. 363 (1993).  Prior to the examination, all outstanding treatment records should be obtained.

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.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. � 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. � 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  (During the pendency of the claims for secondary service connection, 38 C.F.R. � 3.310 was amended, effective October 10, 2006.  The amendments to this section are not liberalizing.  Therefore, the Board will apply the former version of the regulation.)

Here, the Veteran maintains that he has generalized arthritis that is either related to his military service or his service-connected disabilities.  The medical evidence of record contains evidence of current treatment for generalized arthritis.  See June 2010 private treatment record.  Moreover, the Veteran has been awarded service connection for lumbosacral strain and bilateral knee disabilities.  The Veteran has not been afforded a VA examination in connection with his current claim.  The United States Court of Appeals for Veterans Claims (Court) has held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. � 3.159(c)(4)(i).  Under the "low threshold" standard of McLendon, an examination is warranted.

The Veteran also claims that he has a left hip disability related to a car accident in service or his service-connected disabilities.  With respect to this reopened claim for service connection, none of the medical opinions (noting a possible nexus) of record are adequate for adjudication purposes.  It is unclear whether the medical opinions noted above were rendered following a review of all pertinent records.  The Court has held that medical examinations must be thorough and take into account the records of prior examinations and treatment.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Therefore, on remand, the appropriate VA examination should be scheduled.

TDIU

With regards to the claim for TDIU, service connection and the increased rating claims could affect his claim for TDIU.  Therefore, the Board finds that the claims are inextricably intertwined and a Board decision at this time would be premature.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  Moreover, as noted below, additional development specific to the TDIU claim is also in order.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should contact the Veteran and request that he identify the specific joints in which he is claiming arthritis (other than back, knee, and hips) has developed as a result of his service.

2.  The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers (VA and non-VA) who have provided treatment for arthritis, low back disability, left hip disability, and knee disabilities since 2006.  After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file.  All attempts to procure records should be documented in the file.  If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  Contact the SSA and obtain copies of records pertinent to the Veteran's 2008 claim for SSA disability benefits.  If the records are not available, make a notation to that effect in the claims folder.

4.  Thereafter, schedule the Veteran for a VA examination(s) to determine the nature and etiology of any left hip disability and any generalized arthritis (other than arthritis of the knees, low back, and left hip) that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.

Based on a review of the claims file and the results of the examination, the examiner is asked the address the following questions:

A)  Is it at least as likely as not (50 percent or greater) that any current or recent left hip disability is related to any incident of military service or to a service-connected disability?

B)  Is it at least as likely as not (50 percent or greater) that any current or recent arthritis (other than arthritis of the knees, low back, and left hip) is related to any incident of military service or to a service-connected disability?

In all conclusions, the examiner(s) must identify and explain the medical basis or bases, with identification of the evidence of record.

A complete rationale must be provided for all opinions rendered.  If the examiner(s) cannot provide the requested opinions without resorting to speculation, this should be expressly indicated and the examiner(s) should provide a supporting rationale as to why an opinion cannot be made without resorting to speculation, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion.

5.  In addition, schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected low back disability.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected back disability.

The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria.  In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis.  The examiner should also state the total duration of incapacitating episodes over the past 12 months and identify and describe all neurological manifestations of the service-connected spine disability. In so doing, he or she should opine as to whether any neurological symptoms, such as sciatica or radiculopathy, are attributable to the Veteran's service-connected lumbar spine disability.  The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors.

The examiner should then opine as to whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his all his service-connected disabilities combined without regard to the Veteran's age or the impact of any nonservice-connected disabilities.

A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth (i.e., the examiner is asked to explain why/how s/he came to their conclusions).  The report of the examination should be associated with the claims file.

6.  In addition, schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected knee disabilities.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected knee disabilities.  The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination.  The examination report is to contain a notation that the examiner reviewed the claims file.

The examiner is asked to comment on the degree of severity of the Veteran's knee disabilities and affect on his employment and activities of daily living.  In particular, range of motions and the presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors.

The examiner should then opine as to whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of all his service-connected disabilities without regard to the Veteran's age or the impact of any nonservice-connected disabilities.

A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth (i.e., the examiner is asked to explain why/how s/he came to their conclusions).  The report of the examination should be associated with the file.

7.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claims.  The provisions of 38 C.F.R. � 3.310(b) effective prior to October 10, 2006, must be applied.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2011).

______________________________________________
K. R. FLETCHER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: ROBERT E O'BRIEN

disposition: denied

condition: diabetes

text:
Citation Nr: 1204000
Decision Date: 02/03/12    Archive Date: 02/13/12

DOCKET NO.  07-37 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for erectile dysfunction, including as secondary to Agent Orange exposure and/or service-connected diabetes mellitus.

2.  Entitlement to service connection for body rash, including as secondary to Agent Orange exposure.

3.  Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus.

4.  Entitlement to service connection for peripheral neuropathy of the bilateral hands and fingers, including as secondary to service-connected diabetes mellitus.

5.  Entitlement to service connection for peripheral neuropathy of the bilateral feet and toes, including as secondary to service-connected diabetes mellitus.

6.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus.
REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

L. J. N. Driever

INTRODUCTION

The Veteran had active service from July 1968 to July 1970.

These claims come before the Board of Veterans' Appeals on appeal of May 2007 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Acting Veterans Law Judge in January 2011.

The Board addresses the claims of entitlement to service connection for body rash, including as secondary to Agent Orange exposure, hypertension, including as secondary to service-connected diabetes mellitus, peripheral neuropathy of the bilateral hands and fingers, including as secondary to service-connected diabetes mellitus, and peripheral neuropathy of the bilateral feet and toes, including as secondary to service-connected diabetes mellitus, in the REMAND portion of the decision, below, and REMANDS them to the RO via the Appeals Management Center in Washington, D.C.

FINDINGS OF FACT

1.  The Veteran is presumed to have been exposed to Agent Orange.

2.  Erectile dysfunction is not related to the Veteran's active service, including any Agent Orange exposure, or service-connected diabetes mellitus.

3.  In a rating decision dated in May 2007, the RO denied the Veteran entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus.

4.  The RO notified the Veteran of the decision and of his appellate rights with regard to the decision, but he did not appeal it.

5.  The evidence received since May 2007 is neither cumulative, nor redundant of the evidence previously of record, but by itself or when considered with the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus, and does not raise a reasonable possibility of substantiating that claim.

CONCLUSIONS OF LAW

1.  Erectile dysfunction was not incurred in or aggravated by the Veteran's active service, may not be presumed to have been so incurred, and is not proximately due to or the result of his service-connected diabetes mellitus.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.303, 3.307, 3.309 (2011).

2.  The May 2007 rating decision, in which the RO denied the Veteran entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus, is final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2006).

3.  New and material evidence has not been received to reopen a claim of entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R.
� 3.156 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2011).

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A.  Duty to Notify

The VCAA and its implementing regulations provide, in part, that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. � 5103.

With regard to claims to reopen, VA is to inform the claimant of the evidence and information necessary to reopen his claim and to establish entitlement to the underlying claim.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).  In notifying the claimant of what evidence would be considered new and material, VA is to look at the basis of the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in that case.  Id.

The RO provided the Veteran with VCAA notice on the claims being decided by letters dated December 2006 and November 2008.  The content of these letters reflects compliance with pertinent regulatory provisions and case law, noted above.  In the letters, the RO acknowledged the claims being decided, notified him of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty.  The RO also provided the Veteran all necessary information on disability ratings and effective dates and noted the basis of the last denial of his claim for service connection for an eye disorder.  As well, it identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing.  The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the sources thereof.  The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence.

Notice under the VCAA must be provided to a claimant prior to an initial unfavorable decision by the agency of original jurisdiction.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004).  The VCAA notice letters, having been sent before the RO initially adjudicated the claims being decided, satisfy the timing requirements of the VCAA.

B.  Duty to Assist

VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. �� 5103(a), 5103A (West 2002); 38 C.F.R. � 3.159(b), (c) (2011).

VA made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims.  38 U.S.C.A. � 5103A(a), (b), (c) (West 2002).  Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claims, including service treatment and personnel records and post-service treatment records.  The RO also afforded the Veteran VA examinations in support of these claims, during which examiners discussed the etiology of the claimed disabilities.

II.  Analysis

A.  Erectile Dysfunction

The Veteran contends that he is entitled to service connection for erectile dysfunction secondary to Agent Orange exposure, or his service-connected diabetes mellitus.  According to an application for benefits and written statements he submitted during the course of this appeal, including in October 2006, January 2007, October 2007 and November 2007 and his hearing testimony, presented in January 2011, he developed erectile dysfunction in 2001, after being diagnosed with diabetes, due to chemicals (Agent Orange and other herbicides) to which he was exposed in Vietnam where he served as a field lineman in communications.  He alternatively contends that he developed the erectile dysfunction secondary to his diabetes or the medication taken therefor.  He does not understand why medical documents show that he had erectile dysfunction prior to the diabetes as he does not recall it manifesting until after the diagnosis.  According to his spouse, whose written statement was received in January 2012, the Veteran's health changed after he was diagnosed with diabetes; prior to that time, he had no sexual problems.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A.
� 1110 (West 2002); 38 C.F.R. � 3.303(a) (2011).  To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability.  See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim.  38 C.F.R. � 3.303(b) (2011).

Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d) (2011).

To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent).  Once evidence is determined to be competent, its credibility must be evaluated.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence).

In some circumstances, a disease associated with exposure to certain herbicide agents may be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A.
� 1116(a) (West 2002); 38 C.F.R. �� 3.307(a)(6), 3.309(e) (2010).  Erectile dysfunction is not one of the diseases presumed to be associated with herbicide exposure.  38 U.S.C.A. � 1116(a)(2); 38 C.F.R. � 3.309(e).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. � 1116(f) (West 2002).  The Veteran in this case, having served in the Republic of Vietnam from December 1968 to December 1969, is presumed to have been exposed to Agent Orange during such service.  The Board thus concedes such exposure under 38 U.S.C.A. � 1116 (West 2002).

Post-service medical documents, including VA and private treatment records dated since 2000, reports of VA examinations conducted in May 2007 and February 2009, and a February 2011 written statement from the Veteran's private physician, confirm that the Veteran currently has erectile dysfunction.  The question is thus whether this condition is related to the Veteran's active service, including the herbicide exposure, or to his service-connected diabetes mellitus.

As previously indicated, the Veteran served on active duty from July 1968 to July 1970.  According to his service treatment records, during this time period, he did not report, and no medical professional diagnosed, erectile dysfunction.  A private physician first rendered this diagnosis in December 2000 and, since then, the Veteran has received treatment for erectile dysfunction.

Two medical professionals, both VA examiners, have addressed the etiology of the erectile dysfunction.  During VA examinations conducted in May 2007 and February 2009, both ruled out a relationship between the Veteran's erectile dysfunction and his diabetes mellitus on the basis that the erectile dysfunction preceded the diabetes.  Their reports indicate that a physician first diagnosed the Veteran with diabetes in 2004 or 2005.  The Veteran does not contend and the evidence does not show otherwise.  The examiners did not address any possible relationship between the erectile dysfunction and the Veteran's herbicide exposure, but they likely considered it as they recorded the Veteran's history of Agent Orange exposure in their reports.

The Veteran's assertions therefore represent the only evidence of record linking his erectile dysfunction to his active service, including the herbicide exposure, or to his service-connected diabetes mellitus.  The Veteran is competent to report and describe the nature of his erectile dysfunction as it is a condition that is capable of lay observation.  However, he does not possess a recognized degree of medical knowledge to link this condition to his active service, including the herbicide exposure, or to a service-connected disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is not competent to offer an opinion regarding a medical question when that question may not be resolved through lay observation).

In the absence of competent evidence of a nexus between the Veteran's erectile dysfunction and his active service or his service-connected diabetes mellitus, the Board concludes that such a condition was not incurred in or aggravated by such service, including the herbicide exposure, and is not proximately due to a service-connected disability.  Due to the fact that erectile dysfunction is not listed at 38 U.S.C.A. � 1116(a)(2), the Board also concludes that the condition may not be presumed to have been incurred in service.

The evidence in this case is not in relative equipoise.  Rather, as a preponderance of the evidence is against of the claim, the benefit-of-the-doubt rule is not for application.  38 U.S.C.A. � 5107(b) (West 2002).

B.  Eye Disorder

In a rating decision dated in May 2007, the RO denied the Veteran entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus.  In deciding the claim, the RO considered the Veteran's service treatment records, a service personnel document, post-service private treatment records, a VA examination report and the Veteran's written statements.  The RO found that the Veteran had blurred vision for reading, corrected by glasses, but no current diagnosed eye disorder that occurred in service, was caused by service, or is related to his service-connected diabetes mellitus.

By letter dated June 2007, the RO notified the Veteran of the May 2007 rating decision and of his appellate rights with regard to that decision.  Thereafter, however, the Veteran did not appeal it.  The rating decision is thus final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2006).

The Veteran attempted to reopen his claim for service connection for an eye disorder by written statement received in October 2008.  A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim.  Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record.  38 U.S.C.A. � 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996).

For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative, nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. � 3.156(a) (2011)).

The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis.  Evans, 9 Vet. App. at 273.  This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).

The evidence that has been associated with the claims file since the RO's May 2007 rating decision includes post-service VA and private treatment records, VA examination reports, a written statement of a private physician, the Veteran's, his representative's and his spouse's written statements, and the Veteran's testimony.  With regard to some of the Veteran's statements, which essentially reiterate previously expressed assertions, this evidence is new.  It is neither cumulative, nor redundant of the evidence previously of record.

This evidence is not, however, material.  By itself or when considered with the evidence previously of record, it does not relate to an unestablished fact necessary to substantiate the claim for service connection for an eye condition and does not raise a reasonable possibility of substantiating that claim.

More specifically, the written statements, including the Veteran's, his representative's and his spouse's, relate an eye disorder to the Veteran's service-connected diabetes mellitus.  According to the spouse, the Veteran's health changed after developing diabetes.  The private physician's written statement, dated in February 2011, does not refer to the Veteran's eyes.  The Veteran's hearing testimony indicates that a VA physician told the Veteran that his eye disorder, characterized as glaucoma, was related to service, but would not record his opinion in this regard.

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation.  Lay statements, however, may serve to support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability, such as pain, which may reasonably be observed by laypersons.  Jandreau v. Nicholson, 492 F.3d at 1372; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  In this case, the lay statements relating an eye disorder to service or to the service-connected diabetes mellitus are not competent as none of the laypersons has the medical expertise necessary to provide an opinion on medical causation.  Such statements may not then serve as a predicate to reopen this previously denied claim.  Moray v. Brown, 5 Vet. App. 211, 214 (1995) (lay assertions of medical causation cannot serve as a predicate to reopen a previously denied claim).

Post-service VA and private treatment records establish that the Veteran is receiving treatment for an eye disorder variously diagnosed, including as glaucoma and cataracts in both eyes, but has not been diagnosed with diabetic retinopathy.  These medical records do not include an opinion linking either of these eye disabilities to the Veteran's service or service-connected diabetes mellitus.

The reports of VA examinations conducted in February 2009, July 2010 and August 2010 do not include a diagnosis of diabetic retinopathy.  In February 2009, the examiner specifically found that the Veteran had no eye complications secondary to diabetes.

The absence of the same type of evidence - a competent link between a current eye disorder and the Veteran's active service or service-connected diabetes - formed the basis of the RO's May 2007 denial of this claim.  Having determined that new and material evidence has not been received, the Board may not reopen and must deny the claim of entitlement to service connection for an eye disorder.

ORDER

Service connection for erectile dysfunction, including as secondary to Agent Orange exposure and/or service-connected diabetes mellitus, is denied.

New and material evidence not having been received, the claim of entitlement to service connection for an eye disorder, including as secondary to service-connected diabetes mellitus, is denied.

REMAND

Prior to adjudication of the claims of entitlement to service connection for body rash, including as secondary to Agent Orange exposure, hypertension, including as secondary to service-connected diabetes mellitus, peripheral neuropathy of the bilateral hands and fingers, including as secondary to service-connected diabetes mellitus, and peripheral neuropathy of the bilateral feet and toes, including as secondary to service-connected diabetes mellitus, additional development is required.  See 38 C.F.R. � 19.9 (2011).

Under 38 U.S.C.A. � 5103A, VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service.

The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Evidence of a link between current disability and service must be sufficient and, depending on the nature thereof, may include an assertion by the Veteran linking the two.  Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a conclusory, generalized statement relating an in-service illness to present medical problems is not sufficient to necessitate obtaining a VA examination and that medical examinations are not to be routinely and automatically provided to all veterans in disability cases involving nexus issues).  The threshold for finding a link between a current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. at 83.

In this case, examinations in support of the claims being remanded are necessary.  With regard to the claim for service connection for a body rash, post-service medical documents of record confirm that the Veteran has a skin disorder that manifests, in part, as rash and has been variously diagnosed, including as herpes zoster (shingles), jock itch and dermatitis.  According to the Veteran's statements, both oral and written, he did not have skin problems prior to entering service.  He first noticed a rash on his body two months after his discharge from service and, since then, it has continued to recur intermittently.  He believes it is due to his in-service Agent Orange exposure.

The Veteran does not contend and his service treatment records do not show that he reported or received treatment for skin complaints during service.  Regardless, the Veteran is competent to report and describe body rash as a rash is capable of lay observation.  The Veteran's statements thus represent evidence of continuity of lay-observable skin symptomatology, at least since approximately September 1970, two months after his discharge from service.  To date, however, VA has not obtained a medical opinion as to whether any current skin disability is related to the Veteran's service, including his presumed Agent Orange exposure, or whether it might represent chloracne or a form thereof manifesting within a year of service.

With regard to the claim for service connection for hypertension, the RO afforded the Veteran a VA examination in February 2009, during which an examiner discussed the etiology of the Veteran's hypertension.  This opinion, however, is inadequate to decide this claim.  First, it is not based on rationale - the examiner states succinctly "hypertension, not due to diabetes mellitus."  This is especially deficient given that diabetes is commonly known to cause hypertension in some individuals.  Second, the opinion is based on inaccurate clinical evidence.  In his report, the examiner notes that the Veteran was diagnosed with hypertension six to eight months prior to the examination, but the service treatment records mention this condition in 1970 and records from F.A.D., M.D, the Veteran's private physician mention mildly hypertensive blood pressure in 2003.  Clearly the VA examiner did not review these records before offering his opinion.  Third, the VA examiner did not address whether the Veteran's hypertension is aggravated by his service-connected diabetes mellitus.

With regard to the claims for service connection for peripheral neuropathy of the hands, fingers, feet and toes, the medical evidence of record conflicts.  Recently and without a waiver of initial RO consideration, the Veteran submitted a statement from F.A.D., M.D. indicating that the Veteran has diabetic neuropathy.  This opinion conflicts with those of three VA examiners, who, during examinations in 2007, 2009 and 2010, either found that the Veteran had no affected extremities, or linked reported neuralgia in some of the extremities to the Veteran's herpes zoster, not to his diabetes.  Dr. F.A.D. does not identify the extremities affected by the alleged diabetic neuropathy and his treatment records do not provide any guidance in this regard.  They do not include a diagnosis of diabetic neuropathy.  In March 2005, the Veteran saw Dr. F.A.D. for a painful rash and, during that one visit, the doctor diagnosed herpes zoster and diabetes mellitus.  In addition, above the first diagnosis, he wrote "with neuropathy."  It is unclear whether the doctor meant to associate the neuropathy with the herpes zoster similarly to the VA examiners, or with the diabetes.  Clarification and rationale is needed in this regard as is documentation showing that the Veteran currently has peripheral neuropathy in each of the claimed extremities.

This case is REMANDED for the actions that follow.

1.  After securing any necessary authorization, contact Dr. F.A.D. and ask him to provide additional written information in support of his February 2011 written statement.  Such information should include a description of the extremities affected by the Veteran's diabetic neuropathy, treatment records confirming the presence of such a condition, including those dated during the course of this appeal, commentary on the VA examiners' findings that the Veteran does not have diabetic neuropathy and that any reported neuralgia is due to herpes zoster, a condition for which Dr. F.A.D. treated the Veteran, clarification regarding his March 2005 neuropathy notation (see above) and rationale for all opinions provided.

2.  Arrange for the Veteran to undergo a VA examination in support of his claim for service connection for a body rash.  Ensure that the examiner reviews the claims folder in conjunction with the examination.  Advise the examiner that the Veteran is competent to report observable symptoms experienced during and after service, including, in part, a skin rash, and that any opinion proffered should contemplate these symptoms.  Ask the examiner to conduct a thorough evaluation, including all indicated tests, and then follow the instructions below.

a) record in detail the Veteran's history of in-service and post-service skin complaints;

b) diagnose any skin disability shown to exist, including, if appropriate, chloracne or any form thereof;

c) opine whether any such disability is at least as likely as not etiologically related to the Veteran's period of active service, including reported observable skin symptoms first noticed two months after his discharge from service and/or his presumed Agent Orange exposure;

d) if not, opine whether chloracne or a form thereof manifested to a compensable degree within a year of the Veteran's discharge from service;

e) provide detailed rationale, with specific references to the record, for the opinion expressed; and

f) if an opinion cannot be expressed without resort to speculation, discuss why such is the case and whether there is additional evidence that is outstanding that would aid in providing such an opinion.

3.  Arrange for the Veteran to undergo a VA examination in support of his claim for service connection for hypertension.  Ensure that the examiner reviews the claims folder in conjunction with the examination.  Advise the examiner that the Veteran is competent to report observable symptoms experienced during and after service and that any opinion proffered should contemplate these symptoms.  Ask the examiner to conduct a thorough evaluation, including all indicated tests, and then follow the instructions below.

a) opine whether the Veteran's hypertension is at least as likely as not etiologically related to his period of active service, including in-service notations and reported histories of high blood pressure and hypertension;

b) if not, opine whether the hypertension is proximately due to or the result of the Veteran's diabetes mellitus;

c) if not, opine whether the hypertension is aggravated by the Veteran's diabetes mellitus;

d) provide detailed rationale, with specific references to the record, for each opinion expressed; and

e) if an opinion cannot be expressed without resort to speculation, discuss why such is the case and whether there is additional evidence that is outstanding that would aid in providing such an opinion.

4.  Review the examination reports to ensure that they comply with these remand instructions and, if not, return them to the examiners for correction.

5.  Readjudicate the claims based on all of the evidence of record, including that which the Veteran submitted in March 2011.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Thereafter, subject to current appellate procedure, return this case to the Board for further consideration.

The Board intimates no opinion as to the ultimate outcome of these claims, but reminds the Veteran that he has the right to submit additional evidence and argument on these claims.  Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).

These claims must be afforded expeditious treatment.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2010).

______________________________________________
ROBERT E. O'BRIEN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: JACQUELINE E MONROE

condition: knee

text:
Citation Nr: 1205000
Decision Date: 02/09/12    Archive Date: 02/23/12

DOCKET NO.  09-14 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center
in Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for right knee arthritis.

2.  Entitlement to a rating in excess of 10 percent for left knee arthritis.

3.  Entitlement to an increased (compensable) rating for right knee instability.

REPRESENTATION

Appellant represented by:	David L. Huffman, Attorney

ATTORNEY FOR THE BOARD

T. Adams, Counsel

INTRODUCTION

The Veteran served on active duty from July 1974 to July 1975.

This appeal to the Board of Veterans' Appeals  (Board) arose from a July 2007 rating decision in which the RO continued a 10 percent rating for right knee arthritis, a 10 percent rating for degenerative joint disease of the left knee, and a noncompensable (0 percent) rating for residuals of a right knee injury with instability.  In December 2007, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in March 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in April 2009.

In June 2011, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record.

In response to the Veteran's request for a  before a Veterans Law Judge at the RO in his substantive appeal, a September 2011 letter informed the Veteran that his hearing was scheduled in November 2011.  Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing.  As such, his Board hearing request is deemed withdrawn.  See 38 C.F.R. � 20.704(d) (2011).

The Board notes that the Veteran was previously represented by Disabled American Veterans  (as reflected in an June 1999 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative).  In November 2007, a VA Form 21-22a (Appointment of Attorney or Agent as Claimant's Representative) was submitted by David L. Huffman, a private attorney.  Although, for purposes of the June 2011 DRO hearing, a VAF 21-22a was submitted by Barbara Kuhl, a private attorney and associate of David L. Huffman's, for representation at the hearing, since the DRO hearing, Attorney Huffman has continued to act on the Veteran's behalf.  The Board recognizes private attorney David L. Huffman as the Veteran's current representative.

As a final preliminary matter, the Board notes that, however characterized, the fact remains the appeal involves evaluation of post-operative arthritis and instability of the right knee, and arthritis of the left knee, all residual to injury.  Hence, for the sake of simplicity, the Board has recharacterized the issues on appeal as reflected above and below.

FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished.

2.  Pertinent to the March 2007 claim for increase, the Veteran's service-connected right knee arthritis has been manifested by full extension and flexion to at least 90 degrees, with findings of pain and crepitus and x-ray evidence of degenerative changes.

3.  Pertinent to the March 2007 claim for increase, the Veteran's service-connected left knee arthritis  has been manifested by full extension and flexion to at least 90 degrees, with findings of pain and crepitus and x-ray evidence of degenerative changes.

4.  Although the Veteran reportedly wears knee braces, and a 2008 medical record includes a reference to ligamentous laxity of the right knee, pertinent to the March 2007 filing of the claim for increase, VA examinations have revealed no clinical findings of instability (to include negative drawer and McMurray's signs), and there are otherwise no medical findings of instability or subluxation of either knee.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for service-connected right knee arthritis, are not met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2011).

2.  The criteria for a rating in excess of 10 percent for service-connected left knee arthritis are not met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2011).

3.  The criteria for a compensable rating for service-connected right knee instability are not met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.71a, Diagnostic Code 5257 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. � 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. � 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. � 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, March 2007 pre-rating and June 2010 and August 2011 post-rating letters provided notice to the Veteran regarding what information and evidence was needed to substantiate the claims for increased ratings for right and left knee disabilities, as well as what information and evidence must be submitted by the appellant, and what information would be obtained by VA.  The March 2007 and June 2010 letters also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  The July 2007 RO rating decision reflects the initial adjudication of the claims after issuance of the March 2007 letter.  Thereafter, the March 2009 SOC set forth the pertinent rating criteria for evaluating knee disabilities (the timing and form of which suffices, in part, for Dingess/Hartman).

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal.  Pertinent evidence associated with the claims file consists of the Veteran's VA treatment records, and the reports of April 2007, July 2007, March 2008, August 2010, and August 2011 VA joints examinations.  Also of record and considered in connection with the appeal are various statements submitted by the Veteran and by his representative, on his behalf.

The Board also finds that no additional RO action to further develop the record in connection with any claim on appeal, prior to appellate consideration, is required. The Board notes that in response to the Veteran's testimony during the June 2011 DRO hearing, in August 2011 the Veteran was provided with and requested to complete a VA Form 21-4142, Authorization and Consent to Release Information, to obtain additional private treatment records.  However, the Veteran failed to provide a completed authorization pursuant to the RO's request.  Hence, the RO has fulfilled its duty in attempting to procure any outstanding, pertinent private records, to the extent possible, and no further RO action in this regard is warranted.

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of these claims.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Factual Background

Pertinent to the March 2007 claim for increase, on April 2007 VA joints examination of the right knee, the Veteran presented with a history of right knee surgery for a torn cartilage ligament in 1971.  The examiner noted that he walked with a mild antalgic gait and claimed that he used a right knee brace but did not wear one to the examination.  The Veteran denied the use of canes, crutches, walkers, and wheelchairs.  He was currently working in a post office in equipment and maintenance and stated that he had difficulty with prolonged standing and walking, going up and downstairs, climbing, and squatting due to right knee pain.

Active and passive range of motion of the right knee was from full extension to 150 degrees on flexion, with pain from 140 degrees to 150 degrees.  On repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  There was mild swelling and tenderness along the lateral aspect of the right knee without evidence of crepitus and McMurray's was negative.  A x-ray revealed arthritis.  The examiner diagnosed right knee strain, status post right knee surgery, mildly active on examination.  There was a vertical and asymptomatic scar on the lateral aspect of the right knee that was nine and one-half centimeters by three quarter centimeters.

The report of a July 2007 VA joints examination of the left knee reflects that the Veteran had subjective complaints of constant and moderate to severe left knee pain.  The examiner noted that the Veteran claimed that he used a left knee brace, but did not wear one on examination.  The Veteran had a mild antalgic gait, but denied the use of crutches, a cane, a walker, or a wheelchair.  The Veteran reported difficulty with prolonged walking and standing and walking up and down stairs.

On examination, active and passive range of motion of the left knee was from full extension to 150 degrees on flexion, with pain from 140 degrees to 150 degrees.  On repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  There was moderate tenderness along the anterior aspect of the left knee without evidence of swelling or crepitus on palpation.  The Veteran denied any flare-ups and there were no clinical signs of instability.  Drawer and McMurray's signs were negative.  An April 2007 x-ray did not reveal any significant arthritis.  The diagnosis was left knee strain that was mildly active on examination.

VA treatment records include an October 2007 primary care note which documents the Veteran's complaints of right and left knee pain.  In April 2008, the Veteran complained of increased right and left knee pain and swelling.  He reported that he had been out of work two days due to knee pain and indicated that Ibuprofen had not relieved his symptoms.  Examination of the knees revealed trace edema in the right knee and +1 edema in the left knee.  There was evidence of warmth, pain, and stiffness with range of motion of the left knee, but no evidence of redness.  The assessment was bilateral degenerative joint disease with effusion.  It was noted that an x-ray of the knees was negative for evidence of fracture of dislocation.  As regards the right knee, there were moderate to severe degenerative changes with joint space narrowing, and heterotopic bone formation in all compartments.  Subchondral cysts were also visualized.  There was no evidence of a right suprapatellar joint effusion.  As regards the left knee, there were mild to moderate degenerative changes with narrowing of the compartments, most pronounced in the medial compartment, with mild productive bony changes and possible tiny left joint effusion.

A May 2008 rheumatology note indicates a history of "cartilage removal" of the right knee during service and of left knee pain.  The Veteran complained of knee pain with walking, standing, and walking up and down stairs and of morning stiffness.  It was noted that he received a steroid injection in the right knee but not the left knee.  The examiner noted ligamentous laxity of the right knee with small to moderate effusions of both knees with minimal warmth.  The assessment was severe osteoarthritis of the knees with the right knee partially secondary to trauma.  Synvisc injections were ordered for both knees and a knee brace was prescribed for stabilization.  The Veteran received knee injections in July and August 2008.

On March 2008 VA joints examination of both knees, the Veteran indicated that surgery on the right knee in 1971 did not provide him with much pain relief and denied any left knee surgeries.  The Veteran presented with subjective complaints of constant right and left knee pain described as moderate to severe.  The examiner noted that the Veteran had an antalgic gait.  He wore a brace on each knee, but denied the use of canes, crutches, walkers, and wheelchairs.  The Veteran continued to have difficulty with prolonged standing and walking, walking up and down steps, climbing, and squatting due to right and left knee pain.  He denied any flare-ups of either knee.

Range of motion of the right knee was from full extension to 100 degrees on flexion, with pain from 90 to 100 degrees.  Range of motion of the left knee was from full extension to 110 degrees on flexion, with mild to minimal pain from 100 to 110 degrees.

The examiner noted that, as regards both knees, on repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  There was no evidence of instability of the knees and drawer and McMurray's signs were negative.  While there was evidence of crepitus on palpation ,as well as mild tenderness along the medial, anterior, and lateral aspect of both knees, no swelling was indicated.  The examiner noted that the Veteran's right knee scars were asymptomatic.  The examiner diagnosed residuals of right knee surgery with bilateral knee strain with a history of arthritis of both knees, mildly active at the time of the examination, with range of motion abnormalities.

On August 2010 VA joints examination of both knees, the Veteran complained of constant bilateral knee pain which he described as moderate to severe with moderate constant stiffness and weakness with moderate to severe constant pain in both knees.  The examiner noted that the Veteran had a moderate antalgic gait.  The examiner noted the Veteran's report that he used a cane and wore braces, but that he presented to the examination without either, and denied the use of walkers, crutches, and wheelchairs.  He reportedly took Motrin for pain, which was helpful.

Active and passive range of motion of the right and left knee was from full extension to 90 degrees on flexion, with moderate pain from 80 to 90 degrees.  With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance for either knee and there was no additional loss of function.

The examiner noted that the Veteran denied any flare-ups and that there was no instability of either knee.  Drawer and McMurray signs were negative.  There was no crepitus on palpation.  There was moderate tenderness along the anterior, medial, and lateral aspects of the right and left knee with mild-to-moderate swelling, but there was no evidence of heat, redness, or drainage.  While there was evidence of moderate weakness and stiffness of the right and left knee, there was no evidence of deformity, instability, giving way, locking, effusion, dislocation, or subluxation.  April 2008 x-rays of the right and left knee revealed arthritis in both knees.  The examiner diagnosed bilateral knee sprain with arthritis in the right and left knee with range of motion abnormalities in the right and left knee.

VA treatment records include a July 2009 prosthetics report which reflects the Veteran's complaints of mostly medial bilateral knee pain.  At that time, he was measured for bilateral medial unloading knee braces which he received in March 2011.

During the Veteran's June 2011 DRO hearing, the Veteran testified that he wore an unloader brace on each knee and that he had no cartilage in the right knee.  He also testified that he received knee injections and that a total right knee replacement was not recommended due to his age.  He had been employed with the post office for nineteen years where he worked on HVACs and was required to stand on his knees.  The Veteran testified that he missed three or four days of work every three or four months due to his right and left knee disabilities.  He testified that he was unable to work continuously on his knees and complained of giving way but denied any falls.  The Veteran complained of hearing a clicking noise and of stiffness with prolonged sitting.  He stated that he was unable to ride a bike, jog, or play basketball due to his right and left knee disabilities.

On August 2011 VA joints examination of both knees, the Veteran complained of constant bilateral knee pain described as moderate to severe with moderate and constant stiffness and weakness.  The examiner noted that the Veteran had a moderate antalgic gait and wore knee braces, but denied the use of walkers, crutches, wheelchairs, and canes.  The Veteran reported that he took one Advil pill twice daily for knee pain.  He was still employed as an engineer and complained of difficulty with prolonged standing, walking, walking up and down steps, and squatting due to right and left knee pain.

Range of motion of the right and left knee was from full extension to 100 degrees on flexion, with moderate pain from 90 to 100 degrees.  On repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  There was no additional loss of function of the right and left knee on examination.  The Veteran denied any flare-ups due to his right and left knee disabilities.  Drawer and McMurray's signs were negative, but there was evidence of crepitus on palpation.  There was moderate tenderness along the anteromedial and lateral aspect of the right and left knee, but there was no swelling, heat, redness, or drainage.  There was moderate weakness and stiffness of the right and left knee, but there was no evidence of deformity, instability, giving way, locking, effusion, dislocation, or subluxation.  The examiner noted that an April 2007 x-ray of the right knee revealed arthritis and an April 2008 x-ray of the left knee revealed arthritis.  The examiner diagnosed bilateral knee strain with arthritis of the right and left knee with abnormal range of motion status post residuals of right knee surgery.

III.  Analysis

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies.  38 C.F.R. � 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran.  38 C.F.R. � 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. � 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App.  505, 509-10 (2007).  The analysis of each disability is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

A. Right and Left Knee Arthritis

The Veteran has been assigned a 10 percent rating, each, for arthritis of the right and left knee under the provisions of 38 C.F.R. � 4.71a, Diagnostic Code 5010, for traumatic arthritis.  Traumatic arthritis is, in turn, is rated under Diagnostic Code 5003, for degenerative arthritis.

Under DC 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved (here, DCs 5260, and 5261).  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  See also 38 C.F.R. � 4.71a, Diagnostic Code 5010 (prescribing that arthritis due to trauma, substantiated by x-ray findings, should be evaluated as degenerative arthritis).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

Standard range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion).  See 38 C.F.R. � 4.71, Plate II.

Under DC 5260, a noncompensable rating is assigned for flexion limited to 60 degrees.  A rating of 10 percent requires limitation of flexion to 45 degrees.  A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees.  38 C.F.R. � 4.71a, DC 5260.

Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees.  A rating of 20 percent requires limitation of extension to 15 degrees.  A rating of 30 percent requires limitation of extension to 20 degrees.  A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees.  38 C.F.R. � 4.71a, DC 5261.
The VA General Counsel has held that separate ratings under 38 C.F.R. � 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint.  See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. �� 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App.  202, 204-7 (1995).  The provisions of 38 C.F.R. � 4.40 and 38 C.F.R. � 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

A.  Right and Left Knee Arthritis

Considering the pertinent facts in light of the applicable rating criteria, the Board finds that, at no point pertinent to the current claim for increase has either right or knee left arthritis warranted a rating higher than the 10 percent rating assigned.

As regards limitation of motion, the medical evidence shows that arthritis of each knee has been manifested by full extension to and flexion to at least 90 degrees with pain at 80 degrees.  The Veteran has consistently complained of pain in both knees.  On VA examinations in April 2007, July 2007, March 2008, August 2010, and August 2011, while joint function of the right and left knee was limited by pain, there was no evidence of weakness or a lack of endurance after repetitive use.  There is no lay or medical indication that his right and left knee manifestations have ever been so disabling as to result in flexion limited to 45 degrees, or extension limited to 10 degrees, as to warrant the assignment of even the minimum 10 percent rating for the right or left knee under Diagnostic Code 5260 or 5261, respectively.

The Board emphasizes that, despite the Veteran's complaints of chronic pain, the 10 percent rating assigned for arthritis of each knee appropriately compensates him for the extent of his functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination.  See 38 C.F.R. �� 4.40 and 4.45, and DeLuca.  As noted, examination reports dated in April 2007, July 2007, March 2008, August 2010, and August 2011, clearly reflect that the Veteran's range of motion has been affected by pain, but there is no evidence that range of motion was affected by fatigue, weakness, lack of endurance, or incoordination.  The Veteran was able to accomplish right and left knee range of motion as noted above, and a higher rating would not be assignable even when considering the points at which pain began.  Moreover, the August 2010 and August 2011 examiners specifically noted that the Veteran denied flare-ups, and that, on repetitive use x 3 in August 2011, no additional pain was elicited,

In rendering the above-noted determinations, the Board has certainly considered the Veteran's assertions, but emphasizes that they are not considered more persuasive than the objective clinical findings and medical assessments.  See 38 C.F.R. � 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  See also Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  Here, the persuasive, objective evidence simply does not support a finding that, at any point pertinent to the current claim for increase, the Veteran's symptoms of pain, fatigue, weakness, lack of endurance, and/or incoordination have been have been so disabling-to include on repeated use and/or during flare-ups-to support assignment of a rating in excess of 10 percent for right or left knee arthritis under any applicable diagnostic code predicated on limitation of motion.

Also, with respect to the left knee, as discussed below, the Board also finds that the record presents no basis for assignment of a separate, compensable rating for instability.  See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998).

For all the foregoing reasons, the Board finds that there is no basis for staged rating of either right or left knee arthritis, pursuant to Hart, and that each claim for higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating for either knee, that doctrine is not applicable.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. �� 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

B.  Instability

Under DC 5257, other impairment of the knee, such as recurrent subluxation or lateral instability, is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe.  38 C.F.R. � 4.71a, DC 5257.

The rating schedule authorizes the assignment of a zero percent (noncompensable) rating in every instance in which the rating schedule does not provide such an evaluation and the requirement for a compensable rating.  38 C.F.R. � 4.31.

Considering the pertinent evidence in light of the applicable criteria, the Board finds that the record presents no basis for assignment of even the minimum, compensable rating for right knee instability.  Despite the fact that Veteran reportedly wears braces on both knees, and testified that he experienced some giving way of the right knee, the weight of the objective medical evidence does not reflect even slight instability of the right knee so as to warrant a compensable rating under Diagnostic Code 5257.

In this respect, the only notation of in the medical records that even suggests instability is the reference to ligamentous laxity in the right knee reflected in a May 2008 rheumatology note.  However, the reports of April 2007, July 2007, March 2008, August 2010, and August 2011 VA joints examinations reflect that there was no clinical evidence of instability.  As specifically noted by April 2007, March 2008, August 2010, and  August 2011 VA examiners, drawer and McMurray's signs have been negative, and there are otherwise no medical findings of instability or subluxation of either knee.

In short, the weight of the medical evidence establishes that assignment of  at least the least the minimum, compensable rating under Diagnostic Code 5257 is not warranted at any point pertinent to the March 2007 claim for increase.  Again, the Board has considered the Veteran's assertions, but finds that they are not more probative than the objective testing results and medical findings.  See, e.g., 38 C.F.R. � 3.159; Bostain, 11 Vet. App.at  127; Routen, 10 Vet. App. at 186.

Accordingly, the Board concludes there is no basis for staged rating of right knee instability, pursuant to Hart, and that the claim for higher rating must be denied.  In reaching the conclusion to the claim, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a compensable rating for right knee instability, that doctrine is not applicable.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. �� 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.

ORDER

A rating in excess of 10 percent for right knee arthritis is denied.

A rating in excess of 10 percent for left knee arthritis is denied.

An increased (compensable) rating for right knee instability is denied.

____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs