judge_norm: ALAN S PEEVY

text: To that extent, the appeal is denied.

text:
Citation Nr: 1005000
Decision Date: 02/03/10    Archive Date: 02/18/10

DOCKET NO.  07-24 362	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUES

1.  Entitlement to an increased disability rating for right
foot bunion, currently evaluated as 10 percent disabling.

2.  Entitlement to an increased disability rating for left
foot bunion, currently evaluated as 10 percent disabling.

3.  Entitlement to an increased disability rating for left
knee chondromalacia patella, currently evaluated as 10
percent disabling.

4.  Entitlement to an increased disability rating for right
knee traumatic arthritis, currently evaluated at 10 percent
disabling.

5.  Entitlement to service connection for gout, to include as
secondary to the Veteran's service connected right and left
foot bunion disabilities.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's Spouse

ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel

INTRODUCTION

The Veteran had active duty service from August 1982 to
August 1986 and November 1986 to September 2004.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from November 2006 and January 2008 rating
decisions by a Regional Office (RO) of the Department of
Veterans Affairs (VA).  Notices of disagreement were received
in November 2006 and February 2008, statements of the case
were issued in June 2007 and November 2008, and substantive
appeals were received in June 2007 and January 2009.  The
Veteran testified at a Board hearing at the RO in April 2009.

The issue of entitlement to service connection for gout is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.  In addition, the Board notes that during
the April 2009 hearing the Veteran raised the issue of
entitlement to service connection for a torn Achilles tendon,
to include as secondary to the Veteran's service-connected
right and left foot bunion disabilities.  The Board therefore
refers the issue of a torn Achilles tendon back to the RO for
development and adjudication.

FINDINGS OF FACT

1.  The Veteran's right foot bunion is currently rated at the
highest possible scheduler rating and it does not present an
exceptional or unusual disability picture with related
factors as marked interference with employment or frequent
periods of hospitalization to require an extraschedular
consideration.

2.  The Veteran's left foot bunion is currently rated at the
highest possible scheduler rating and it does not present an
exceptional or unusual disability picture with related
factors as marked interference with employment or frequent
periods of hospitalization to require an extraschedular
consideration.

3.  The Veteran's left chondromalacia patella is not
manifested by ankylosis, recurrent subluxation or lateral
instability, dislocated semilunar cartilage, limitation of
flexion to 30 degrees, or any limitation of extension.

4.  The Veteran's right knee traumatic arthritis is not
manifested by ankylosis, recurrent subluxation or lateral
instability, dislocated semilunar cartilage, limitation of
flexion to 30 degrees, or any limitation of extension.

CONCLUSIONS OF LAW

1.  The criteria for an increased disability rating for right
foot bunion in excess of 10 percent have not been met.
38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic
Code 5280 (2009).

2.  The criteria for an increased disability rating for left
foot bunion in excess of 10 percent have not been met.
38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic
Code 5280 (2009).

3.  The criteria for an increased disability rating for left
chondromalacia patella in excess of 10 percent have not been
met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. �� 3.159, 3.321, Part 4, 4.7, 4.40, 4.45,
4.71a, Diagnostic Code 5260 (2009).

4.  The criteria for an increased disability rating for right
knee traumatic arthritis in excess of 10 percent have not
been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. �� 3.159, 3.321, Part 4, 4.7, 4.40, 4.45,
4.71a, Diagnostic Codes 5010, 5260 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

Duty to Notify

Under the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107 and 5126; see also 38 C.F.R.  �� 3.102, 3.156(a), and
3.326(a), VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete
a claim, and of what part of that evidence is to be provided
by the claimant and what part VA will attempt to obtain for
the claimant.  38 U.S.C.A. � 5103(a); 38 C.F.R � 3.159(b)(1);
Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002).

The record shows that through VCAA letters dated August 2006,
December 2006, September 2007, and May 2008 the appellant was
informed of the information and evidence necessary to warrant
entitlement to the benefit sought on appeal.  The appellant
was also advised of the types of evidence VA would assist him
in obtaining as well as his own responsibilities with regard
to identifying relevant evidence.  See Quartuccio v.
Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16
Vet.App. 370 (2002).

The United States Court of Appeals for Veterans Claims
decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004)
held, in part, that a VCAA notice as required by 38 U.S.C. �
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim for VA benefits.  The VCAA letter to the appellant was
provided in August 2006 prior to the initial unfavorable
decision in November 2006.

The United States Court of Appeals for Veterans Claims
(Court), in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008)
purported to clarify VA's notice obligations in increased
rating claims.  The Court held that a notice letter must
inform the Veteran that, to substantiate a claim, he or she
must provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life.  The Court also held
that where the claimant is rated under a diagnostic code that
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life, the notice letter must
provide at least general notice of that requirement.

The Board points out that the U.S. Court of Appeals for the
Federal Circuit recently reversed the Court's holding in
Vazquez, to the extent the Court imposed a requirement that
VA notify a Veteran of alternative diagnostic codes or
potential "daily life" evidence.  See Vazquez-Flores v.
Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009).  Reviewing
the May 2008 correspondence in light of the Federal Circuit's
decision, the Board finds that the Veteran has received
38 U.S.C.A. � 5103(a)-compliant notice as to his increased
rating claim.

Although some of the notices did not precede the initial
adjudications of the Veteran's claims, the later notices were
followed by a subsequent readjudication, in this case a
supplemental statement of the case issued in March 2009,
thereby curing the defective notice error.  See Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect).

The Veteran has received all essential notice, has had a
meaningful opportunity to participate in the development of
his claims, and is not prejudiced by any technical notice
deficiency along the way.  See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004).  In any event, the Veteran has not
demonstrated any prejudice with regard to the content of the
notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009)
(Reversing prior case law imposing a presumption of prejudice
on any notice deficiency, and clarifying that the burden of
showing that an error is harmful, or prejudicial, normally
falls upon the party attacking the agency's determination.)
See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed.
Cir. 2006).

Duty to Assist

The Board also finds that there has been substantial
compliance with the assistance provisions set forth in the
law and regulations.  The record in this case includes
service treatment records, private treatment records, VA
examination reports, and lay evidence.  The Board finds that
the record as it stands includes adequate competent evidence
to allow the Board to decide the case and no further action
is necessary.  See generally 38 C.F.R.  � 3.159(c).  No
additional pertinent evidence has been identified by the
claimant.

The Veteran was afforded VA examinations in September 2006,
November 2006, and January 2008.  38 U.S.C.A. � 5103A(d);
38 C.F.R. � 3.159(c)(4).  Given that the claims file was
reviewed by some of the examiners and the examination reports
set forth detailed examination findings in a manner which
allows for informed appellate review under applicable VA laws
and regulations, the Board finds the examinations to be
sufficient.  Thus, the Board finds that a further examination
is not necessary.

For all the foregoing reasons, the Board concludes that VA's
duties to the claimant have been fulfilled with respect to
the issues on appeal.

Analysis

The present appeal involves the Veteran's claim that the
severity of his service-connected right foot bunion, left
foot bunion, left knee chondromalacia patella, and right knee
traumatic arthritis warrants higher disability ratings.
Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability.  38 U.S.C.A. � 1155;
38 C.F.R. Part 4.  Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. �
4.7.

In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the Veteran's condition.  Schafrath v.
Derwinski, 1 Vet.App. 589, 594 (1991).  However, 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 (2007).  The
analysis in the following decision is therefore undertaken
with consideration of the possibility that different ratings
may be warranted for different time periods.

It should be noted that when evaluating disabilities of the
musculoskeletal system, 38 C.F.R. � 4.40 allows for
consideration of functional loss due to pain and weakness
causing additional disability beyond that reflected on range
of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202
(1995).  Further, 38 C.F.R. � 4.45 provides that
consideration also be given to weakened movement, excess
fatigability and incoordination.  The standards set forth in
DeLuca and 38 C.F.R. � 4.45 are considered in the analysis of
the issues below.

Right Foot Bunion

The Veteran's service-connected right foot bunion has been
rated by the RO under the provisions of Diagnostic Code 5280
for unilateral hallux valgus.  38 C.F.R. � 4.71a, Diagnostic
Code 5280.  Under this regulatory provision, unilateral
hallux valgus warrants a 10 percent disability rating if
operated with resection of metatarsal head or if severe and
equivalent to the amputation of the great toe.

The Veteran was afforded a VA examination of the feet in
September 2006.  The examiner noted that the Veteran
developed progressive hallux valgus deformity affecting the
right big toe while in service and underwent corrective
surgery in February 2006.  The Veteran complained of a dull
ache with sharp exacerbations affecting the right big toe,
aggravated by any attempt at dorsiflexion or walking for
prolonged distances.  The intensity of the pain was noted at
8-10 on a scale of 1 to 10.  The Veteran used corrective
shoes.  Upon examination, the right big toe showed a windlast
phenomenon affecting the axis of the right big toe with
fibular rotation (to the outside of the foot).  The Veteran
had significantly pronated feet (pes planus).  The Veteran's
range of motion of the right big toe is painful on passive
range of motion or any attempt at active range of motion.
Range of motion was noted as 0 degrees dorsiflexion and 20
degrees plantar flexion.  The examiner noted no breaking
down, no callus formation, no vascular changes, and no skin
changes.  He also noted no hammertoe or clawfoot deformities.
He reported alignment of Achilles tendon at the insertion at
the os calcis 2 degrees of valgus deformity.  The examiner
diagnosed residual from recent hallux valgus deformity
correction and right pes planus deformity.

The Veteran was afforded another VA examination in November
2006.  The Veteran has continued to complain of pain and
discomfort.  The Veteran used over the counter medication and
corrective shoes to prevent and alleviate pain.  Physical
examination revealed pronated attitude (pes planus).  The
examiner noted no breaking down, no callus formation, no
vascular changes, and no skin changes.  He also noted no
hammertoe or clawfoot deformities.  He again reported
alignment of Achilles tendon at the insertion at the os
calcis 2 degrees of valgus deformity.

In January 2008, the Veteran was afforded a VA examination in
relation to his claim of service connection for gout.
Although not provided for the purpose of an increased rating
claim, a full examination of the foot was provided.  The
Veteran reported pain, swelling, heat, redness, stiffness,
fatigability, weakness, and lack of endurance in the
metatarsal heads, first metatarsophalangeal joint.  The
examiner noted flare ups of foot joint disease about every
two months lasting seven to ten days.  During a flare-up the
Veteran can't walk or put any pressure on his feet.   During
physical examination, the examiner noted painful motion,
tenderness, and callouses at metatarsal heads.  He noted no
objective evidence of swelling, instability, or weakness.  He
also noted no abnormal weight bearing, hammertoes, hallux
valgus or rigidus, pes cavus, malunion or nonunion of the
tarsal or metatarsal bones, flatfoot, muscle atrophy of the
foot, or other foot deformity.  The examiner reported that
the Veteran had a slight limp favoring left leg.

In an April 2009 hearing, the Veteran noted that his toes
don't touch the ground.  He claimed that he cannot use his
big toe at all.

As seen above, the rating criteria under Diagnostic Code 5280
does not provide for a rating greater than 10 percent
disabling.  The Veteran is already rated at 10 percent
disabling.  The Board also considered other possible
applicable diagnostic codes, but the VA examiner specifically
noted that the Veteran did not have weak foot, claw foot,
hammer toe, or malunion or nonunion of the tarsal or
metatarsal bones.  In addition, the Veteran was denied
service connection for bilateral pes planus in a November
2004 rating decision.  As that issue is not before the Board,
the diagnostic code for pes planus is also not applicable.
As such, no other diagnostic code is applicable and no
greater disability rating may be afforded under the current
diagnostic code.  The Board acknowledges that the Veteran
feels that his disability has been rated under the wrong
diagnostic code; however, the Board has considered all
potentially applicable diagnostic codes and finds that the
current diagnostic code is appropriate.  The Board addresses
the issue of an extraschedular evaluation below.

Left Foot Bunion

The Veteran's service-connected left foot bunion has also
been rated by the RO under the provisions of Diagnostic Code
5280 for unilateral hallux valgus.  38 C.F.R. � 4.71a,
Diagnostic Code 5280.  Again, under this regulatory
provision, unilateral hallux valgus warrants a 10 percent
disability rating if operated with resection of metatarsal
head or if severe and equivalent to the amputation of the
great toe.

In the November 2006 VA examination, the Veteran noted that
he had aggravated pain in the left foot metatarsophalangeal
joints where he had developed callus formation underneath the
head of the first metatarsal bone due to favoring his right
big toe.  Walking on the left foot caused him pain.  The pain
was aggravated by prolonged standing or ambulation and
relieved by rest and foot elevation.  He noted over the
counter medication and corrective shoes to try and diminish
the pain.  Upon physical examination, the examiner noted
plantar keratosis at the level of the metatarsophalangeal
joint, which was painful to palpation and compression.  It
had been affecting the sesamoid bone.  The examiner explained
that clinically, the presence of the callus formation created
a sesamoiditis.  Examination revealed pronated attitude (pes
planus) and range of motion of dorsiflexion to 20 degrees
with pain and plantar flexion to 30 degrees with pain.
Repetitive action of flexion and extension of the left big
toe was met with increased pain, fatigue, weakness, and lack
of endurance, no decrease in limited range of motion.  The
examiner diagnosed left foot plantar keratosis and clinical
sesamoiditis affecting first metatarsophalangeal joint, left
foot, and left pes planus deformity.

A January 2007 private medical record showed bone pain in the
foot.  The examiner noted that the feet showed abnormal in
appearance.  The left great toe was deviated medially
slightly.  The examiner diagnosed bunion left foot.

In March 2007, the Veteran underwent a modified McBride
bunionectomy with tibial sesamoid excision of the left foot.
The post operative diagnosis was mild bunion deformity of the
left foot and hypertrophic bipartite tibial sesamoid of the
left foot.

In the January 2008 VA examination, the Veteran reported
pain, swelling, heat, redness, stiffness, fatigability,
weakness, and lack of endurance of the metatarsal heads,
first metatarsophalangeal joint.  Upon physical examination,
the examiner noted painful motion and tenderness.  He found
no objective evidence of swelling, instability, weakness, or
abnormal weight bearing.  The examiner also noted no
hammertoes, hallux valgus, hallux rigidus, pes cavus,
malunion or nonunion of the tarsal or metatarsal bones,
flatfoot, muscle atrophy, or other foot deformity.  He did
find callouses at metatarsal heads.

Again, in an April 2009 hearing, the Veteran noted that his
toes don't touch the ground.  He claimed that he cannot use
his big toe at all.

As seen in the above section addressing the right foot
bunion, the rating criteria under Diagnostic Code 5280 does
not provide for a rating greater than 10 percent disabling.
The Veteran is already rated at 10 percent disabling for his
left foot bunion.  The Board again also considered other
possible applicable diagnostic codes, but the VA examiner
specifically noted that the Veteran did not have weak foot,
claw foot, hammer toe, or malunion or nonunion of the tarsal
or metatarsal bones in his left foot either.  In addition,
the Veteran was denied service connection for bilateral pes
planus in a November 2004 rating decision.  As that issue is
not before the Board, the diagnostic code for pes planus is
also not applicable.  Again, no other diagnostic code is
applicable and no greater disability rating may be afforded
under the current diagnostic code.  The Board acknowledges
that the Veteran feels that his disability has been rated
under the wrong diagnostic code; however, the Board has
considered all potentially applicable diagnostic codes and
finds that the current diagnostic code is appropriate.  The
Board addresses the issue of an extraschedular evaluation
below.

Left Knee Chondromalacia Patella

The Veteran's service-connected left chondromalacia patella
was originally rated by the RO under the provisions of
Diagnostic Code 5014 for osteomalacia, which indicates that
the disease should be rated on limitation of motion of the
affected parts.  The RO subsequently noted that the
disability was rated under Diagnostic Code 5261 for
limitation of extension of the leg; however, the evidence
below shows no limitation of extension of the leg, but does
show limitation of flexion of the leg.  Therefore, it would
appear that the Veteran would be rated under Diagnostic Code
5260 for limitation of flexion.  In any event, multiple
diagnostic codes may be applicable relating to the Veteran's
knee.  As such, the Board sets forth and considers all
potential diagnostic codes.

Under Diagnostic Code 5256, ankylosis of the knee is rated at
60 percent disabling when extremely unfavorable, in flexion
at an angle of 45 degrees or more, at 50 percent disabling
when in flexion between 40 and 45 degrees, at 40 percent
disabling when in flexion between 10 and 20 degrees, and at
30 percent disabling when favorable angle in full extension,
or in slight flexion between 0 and 10 degrees.

Under Diagnostic Code 5257, impairment of the knee is rated
at 30 percent disabling for severe recurrent subluxation or
lateral instability, at 20 percent disabling for moderate
recurrent subluxation or lateral instability, and at 10
percent disabling for slight recurrent subluxation or lateral
instability.

Under Diagnostic Code 5258, dislocated semilunar cartilage
with frequent episodes of "locking," pain, and effusion
into the joint is rated at 20 percent disabling.

Under Diagnostic Code 5259, symptomatic removal of semilunar
cartilage warrants a 10 percent disability rating.

Under Diagnostic Code 5260, the limitation of flexion of the
leg to 15 degrees warrants a 30 percent disability rating, to
30 degrees warrants a 20 percent disability rating, to 45
degrees warrants a 10 percent disability rating, and to 60
degrees warrants a noncompensable disability rating.

Under Diagnostic Code 5261, the limitation of extension of
the leg to 45 degrees warrants a 50 percent disability
rating, to 30 degrees warrants a 40 percent disability
rating, to 20 degrees warrants a 30 percent disability
rating, to 15 degrees warrants a 20 percent disability
rating, to 10 degrees warrants a 10 percent disability
rating, and to 5 degrees warrants a noncompensable disability
rating.  38 C.F.R. � 4.71a, Diagnostic Codes 5256-61.

The Veteran was afforded a VA examination of the joints in
September 2006.  The Veteran noted that the knee pain is
aggravated by keeping the knee at flexion and relieved by
keeping the knee in extension.  The intensity of the pain in
the left knee was a 7 out of 10, but goes up to a level 10 as
often as every day.  The range of motion of the left knee
goes from 0 degrees of extension to 140 degrees of flexion
with pain, but without crepitation.  The repetitive action of
flexion and extension was met with increased pain, fatigue,
weakness, and lack of endurance, especially affecting the
patellofemoral joint, but the range of motion was essentially
intact and did not change.  Lachman's test and McMurray test
were negative bilaterally.  The examiner diagnosed the
Veteran with chondromalacia patella left knee.

The Veteran was afforded a VA examination of the joints in
January 2008.  The Veteran reported the use of bilateral knee
braces and a cane at times.  The Veteran reported deformity,
giving way, instability, pain, stiffness, weakness, daily
episodes of dislocation or subluxation, locking episodes, and
repeated effusion.  The Veteran also noted flare ups of both
knees that cause an inability to walk for seven to ten days
every two months.  The Veteran's range of motion of the left
knee was extension to 0 degrees with no pain and no
additional limitation of motion on repetitive use and flexion
to 130 degrees with pain beginning at 95 degrees and no
additional limitation of motion on repetition.  The left knee
presented with some crepitation, tenderness, and painful
movement, but no clicks, snaps, grinding, instability,
patellar abnormality, or meniscus abnormality.  X-rays showed
no pathology in the left knee.  The examiner noted that the
Veteran had been employed at a desk job for 15 months, but
did note that the Veteran was assigned different duties and
experience increased absenteeism.  The examiner diagnosed
left knee strain.

To receive the next higher rating under Diagnostic Codes 5260
or 5261, the evidence must show limitation of extension of
the leg to 15 degrees or limitation of flexion of the leg to
30 degrees.  The Veteran's extension was measured to 0
degrees with pain in September 2006 and to 0 degrees without
pain in January 2008.  The Veteran's flexion was measured to
140 degrees with pain in September 2006 and to 130 degrees
with pain beginning at 95 degrees in January 2008.  As such,
a higher disability rating under Diagnostic Code 5260 or 5261
is not warranted.

The Board then considers other potentially applicable
diagnostic codes.  Diagnostic Code 5256 is not applicable as
the record fails to show ankylosis of the knee at any point.
Diagnostic Code 5257 is also inapplicable as the examiner
specifically noted no instability in January 2008 and the
record is silent as to any recurrent subluxation.  Diagnostic
Code 5258 requires dislocated semilunar cartilage with
frequent episodes of "locking," pain, and effusion into the
joint; however, the evidence again fails to show any
dislocated cartilage and locking.  Finally, the requirements
of Diagnostic Code 5259 are not met as the Veteran has not
had removal of semilunar cartilage.  In sum, the evidence
fails to show entitlement to a rating in excess of 10 percent
under any applicable diagnostic codes.

Right Knee Traumatic Arthritis

The Veteran's service-connected traumatic arthritis right
knee has been rated by the RO under the provisions of
Diagnostic Code 5010 for traumatic arthritis; however,
multiple diagnostic codes may be applicable relating to the
Veteran's knee.

Diagnostic Code 5010 for Arthritis, due to trauma,
substantiated by X-ray findings refers to  Diagnostic Code
5003 for degenerative arthritis.  Diagnostic Code 5003 states
that degenerative arthritis established by x-ray findings
will be rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved.  When the specific joint or joints involved is
noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion, to be combined, not added under Diagnostic Code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion.  In the absence of limitation of
motion, the Veteran should be rated at 10 percent disabling
with x-ray evidence of involvement of two or more major
joints or two or more minor joint groups and 20 percent
disabling with x-ray evidence of involvement of two or more
major joints or two or more minor joint groups, with
occasional incapacitating exacerbations.  38 C.F.R. � 4.71a,
Diagnostic Codes 5003, 5010, 5256-61.

Turning to the other possibly applicable diagnostic
provisions, under Diagnostic Code 5256, ankylosis of the knee
is rated at 60 percent disabling when extremely unfavorable,
in flexion at an angle of 45 degrees or more, at 50 percent
disabling when in flexion between 40 and 45 degrees, at 40
percent disabling when in flexion between 10 and 20 degrees,
and at 30 percent disabling when favorable angle in full
extension, or in slight flexion between 0 and 10 degrees.

Under Diagnostic Code 5257, impairment of the knee is rated
at 30 percent disabling for severe recurrent subluxation or
lateral instability, at 20 percent disabling for moderate
recurrent subluxation or lateral instability, and at 10
percent disabling for slight recurrent subluxation or lateral
instability.

Under Diagnostic Code 5258, dislocated semilunar cartilage
with frequent episodes of "locking," pain, and effusion
into the joint is rated at 20 percent disabling.

Under Diagnostic Code 5259, symptomatic removal of semilunar
cartilage warrants a 10 percent disability rating.

Under Diagnostic Code 5260, the limitation of flexion of the
leg to 15 degrees warrants a 30 percent disability rating, to
30 degrees warrants a 20 percent disability rating, to 45
degrees warrants a 10 percent disability rating, and to 60
degrees warrants a noncompensable disability rating.

Under Diagnostic Code 5261, the limitation of extension of
the leg to 45 degrees warrants a 50 percent disability
rating, to 30 degrees warrants a 40 percent disability
rating, to 20 degrees warrants a 30 percent disability
rating, to 15 degrees warrants a 20 percent disability
rating, to 10 degrees warrants a 10 percent disability
rating, and to 5 degrees warrants a noncompensable disability
rating.  38 C.F.R. � 4.71a, Diagnostic Codes 5256-61.

As noted above, the Veteran was afforded a VA examination of
the joints in September 2006.  The Veteran noted that the
knee pain is aggravated by keeping the knee at flexion and
relieved by keeping the knee in extension.  The intensity of
the pain in the right knee also was a 7 out of 10, but goes
up to a level 10 as often as every day.  The range of motion
of the right knee goes from 0 degrees of extension to 140
degrees of flexion with pain and crepitation.  Repetitive
extension and flexion caused increased pain, fatigue,
weakness, and lack of endurance, but no decrease in the range
of motion.  The Lachman's test and McMurray test were
negative.  The examiner diagnosed traumatic arthritis of the
right knee.

In the January 2008 VA examination, the Veteran reported the
use of bilateral knee braces and a cane at times.  The
Veteran reported deformity, giving way, instability, pain,
stiffness, weakness, daily episodes of dislocation or
subluxation, locking episodes, and repeated effusion.  The
Veteran also noted flare ups of both knees that cause an
inability to walk for seven to ten days every two months.
The Veteran's range of motion of the right knee was extension
to 0 degrees with no pain and no additional limitation of
motion on repetitive use and flexion to 120 degrees with pain
beginning at 75 degrees and no additional limitation of
motion on repetition.  The right knee presented with some
crepitation, tenderness, and painful movement, but no clicks,
snaps, grinding, instability, patellar abnormality, or
meniscus abnormality.  X-rays of the right knee showed
moderate degenerative changes.  The examiner noted that the
Veteran has been employed at a desk job for over a year.  The
examiner diagnosed the Veteran with right knee degenerative
arthritis.

Again, the Veteran is rating under Diagnostic Code 5010 for
traumatic arthritis.  Under this regulation, the Veteran's
arthritis will be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved.  Limitation of motion of the knee is
rated under Diagnostic Codes 5260 and 5261.  Under Diagnostic
Code 5260, the limitation of flexion of the leg to 45 degrees
warrants a 10 percent disability rating and under Diagnostic
Code 5261 the limitation of extension of the leg to 10
degrees warrants a 10 percent disability rating.  The
Veteran's range of motion was measured at extension to 0
degrees with no pain and extension to 120 degrees with pain
beginning at 75.  At no point does the evidence show
limitation of flexion to 45 degrees or limitation of
extension to 10 degrees.

In the absence of limitation of motion, the regulation
provides that the Veteran should be rated at 10 percent
disabling with x-ray evidence of involvement of two or more
major joints or two or more minor joint groups and 20 percent
disabling with x-ray evidence of involvement of two or more
major joints or two or more minor joint groups, with
occasional incapacitating exacerbations.  As the right knee
is the only joint with arthritis and the Veteran is currently
already rated at 10 percent for each knee individually, a 10
percent disability rating is warranted under Diagnostic Code
5010.

The Board also considers other potentially applicable
diagnostic codes.   As with the left knee, the other codes
are inapplicable to the Veteran's right knee disability.
Diagnostic Code 5256 is not applicable as the record fails to
show ankylosis of the knee.  Diagnostic Code 5257 is also
inapplicable as the examiner specifically noted no
instability in January 2008 and the record is silent as to
any recurrent subluxation.  Diagnostic Code 5258 requires
dislocated semilunar cartilage with frequent episodes of
"locking," pain, and effusion into the joint; however, the
objective evidence again fails to show any dislocated
cartilage or locking.  Finally, the requirements of
Diagnostic Code 5259 are not met as the Veteran has not had
removal of semilunar cartilage.  A rating in excess of the
current 10 percent is not warranted under any applicable
diagnostic criteria.

Extraschedular Consideration

To accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Chief Benefits Director
or the Director, Compensation and Pension Service, for
assignment of an extraschedular evaluation commensurate with
the average earning capacity impairment.  38 C.F.R. �
3.321(b)(1).

The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
application of regular schedular standards.  The Court has
held that the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. � 3.321(b)(1) in the
first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. �3.321(b)(1) only where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual.  Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).

The Court has clarified the analytical steps necessary to
determine whether referral for extraschedular consideration
is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).
The Court stated that the RO or the Board must first
determine whether the schedular rating criteria reasonably
describe the Veteran's disability level and symptomatology.
Id. at 115.  If the schedular rating criteria do reasonably
describe the Veteran's disability level and symptomatology,
the assigned schedular evaluation is adequate, referral for
extraschedular consideration is not required, and the
analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation
does not contemplate the Veteran's level of disability and
symptomatology, then either the RO or the Board must
determine whether the Veteran's exceptional disability
picture includes other related factors such as marked
interference with employment and frequent periods of
hospitalization.  Id. at 116.  If this is the case, then the
RO or the Board must refer the matter to the Under Secretary
for Benefits or the Director of the Compensation and Pension
Service for the third step of the analysis, determining
whether justice requires assignment of an extraschedular
rating.  Id.

The Board is of the opinion that the Rating Schedule measures
and contemplates the demonstrated impairment due to the
service-connected disabilities at issue.  Accordingly, an
extraschedular rating or ratings are not appropriate.

ORDER

Entitlement to an increased disability rating for left foot
bunion, currently evaluated at 10 percent disabling, is not
warranted.

Entitlement to an increased disability rating for right foot
bunion, currently evaluated at 10 percent disabling, is not
warranted.

Entitlement to an increased disability rating for left
chondromalacia patella, currently evaluated at 10 percent
disabling, is not warranted.

Entitlement to an increased disability rating for right knee
traumatic arthritis, currently evaluated at 10 percent
disabling, is not warranted.

To that extent, the appeal is denied.

REMAND

Upon preliminary review, the Board finds that further
development is necessary regarding the Veteran's claim of
service connection for gout before a decision on the merits
may be made.  The Veteran was afforded a VA examination in
January 2008.  At that time, the examiner reviewed the claims
file and noted that service treatment records are silent for
a diagnosis of gout and for increased uric acid levels.  The
examiner therefore opined that the Veteran's current
hyperuricemia and gout were not caused by or a result of his
inservice complaints.  The Veteran has submitted lab results
that evidence increased uric acid in January 2005, within
four months of the Veteran's separation from service.  The
Veteran has testified that his doctor informed him that it
takes time to build up that much uric acid and therefore his
hyperuricemia and resulting gout began while in service.  The
Veteran has not submitted any medical evidence to support
this statement; however, the Board finds that the Veteran's
testimony regarding his doctor's statement, along with his
own testimony and that of a fellow service member as to his
burning, swelling, and pain during service, requires further
consideration.  The Board therefore requests that the
examiner extend his comments to address the lab results and
the Veteran's contention.

Accordingly, the case is REMANDED for the following action:

1.  If possible, the claims file should be
referred to the same examiner who
conducted the January 2008 VA examination.
The examiner should extend his comments to
include an opinion as to whether it is at
least as likely as not (a 50% or higher
degree of probability) that the gout or
hyperuricemia began during service.
Specifically, the examiner should provide
the opinion in light of the lab results
showing increased uric acid within four
months of the Veteran's separation from
service.  A clear rationale for all
opinions would be helpful and a discussion
of the facts and medical principles
involved would be of considerable
assistance to the Board.  However, if the
requested opinion cannot be provided
without resort to speculation, the
examiner should so state and explain why
an opinion cannot be provided without
resort to speculation.

2.  Should it not be possible for the
January 2008 VA examiner to review the
file, the Veteran should be afforded a new
VA examination.  It is imperative that the
claims file be made available to and be
reviewed by the examiner in connection
with the examination.  The examiner is
requested to review all pertinent records
associated with the claims file,
particularly service medical records, and
offer comments and an opinion, as to
whether any currently diagnosed gout or
hyperuricemia is at least as likely as not
(a 50% or higher degree of probability)
etiologically related to the Veteran's
inservice symptomatology.  A clear
rationale for all opinions would be
helpful and a discussion of the facts and
medical principles involved would be of
considerable assistance to the Board.
However, if the requested opinion cannot
be provided without resort to speculation,
the examiner should so state and explain
why an opinion cannot be provided without
resort to speculation.

3.  After completion of the above and any
other development the RO should deem
necessary, the RO should review the
expanded record and determine if service
connection for gout is warranted.  If the
claim remains denied, the Veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond.  Thereafter, the case should be
returned to the Board for appellate
review, if otherwise in order.

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2009).

______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: ERIC S LEBOFF

disposition: denied

text:
Citation Nr: 1006000
Decision Date: 02/18/10    Archive Date: 03/02/10

DOCKET NO.  08-26 035	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

WITNESSES AT HEARING ON APPEAL

Veteran and his wife

ATTORNEY FOR THE BOARD

Dirk Harris McClanahan, Law Clerk

INTRODUCTION

The Veteran served on active duty from August 1983 to June
1986.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from a February 2008 rating decision of the
Phoenix, Arizona, Department of Veterans Affairs (VA)
Regional Office (RO), which denied entitlement to service
connection for bilateral hearing loss.

In August 2009, the Veteran testified at a personal hearing
before the undersigned Acting Veterans Law Judge.  A
transcript of the hearing is of record.

FINDING OF FACT

The competent medical evidence does not establish bilateral
hearing loss for VA compensation purposes.

CONCLUSION OF LAW

Bilateral hearing loss was not incurred or aggravated in
service nor may sensorineural hearing loss be presumed to
have been incurred in service.  38 U.S.C.A. �� 1101, 1112,
1131, 1133, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.159, 3.303, 3.307, 3.309, 3.385 (2009).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify & Assist

As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100,
5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2009); 38
C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2009).

Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide.  38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all
five elements of a service connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).  Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable
decision on a claim by the RO.  Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).  Where complete notice is not timely
accomplished, such error may be cured by issuance of a fully
compliant notice, followed by readjudication of the claim.
See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)
(the issuance of a fully compliant VCAA notification followed
by readjudication of the claim, such as a statement of the
case or supplemental statement of the case, is sufficient to
cure a timing defect).

In the present case, the VCAA duty to notify was satisfied by
way of a letter sent to the Veteran in October 2007 that
fully addressed all notice elements and was sent prior to the
initial RO decision on the matter.  The letter informed him
of what evidence was required to substantiate the claims and
of his and VA's respective duties for obtaining evidence.
The letter also explained how VA establishes disability
ratings and effective dates.

Based on the foregoing, adequate notice was provided to the
Veteran prior to the transfer and certification of his case
to the Board and complied with the requirements of 38
U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b).

Next, VA has a duty to assist the Veteran in the development
of the claim.  This duty includes assisting him in the
procurement of service treatment records and providing an
examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R.
� 3.159.

In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a Veteran's claim for benefits, there are
four factors for consideration.  These four factors are: (1)
whether there is competent evidence of a current disability
or persistent or recurrent symptoms of a disability; (2)
whether there is evidence establishing that an event, injury,
or disease occurred in service, or evidence establishing
certain diseases manifesting during an applicable presumption
period; (3) whether there is an indication that the
disability or symptoms may be associated with the Veteran's
service or with another service-connected disability; and (4)
whether there otherwise is sufficient competent medical
evidence of record to make a decision on the claim.  38
U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).

With respect to the third factor above, the Court of Appeals
for Veterans Claims has stated that this element establishes
a low threshold and requires only that the evidence
"indicates" that there "may" be a nexus between the
current disability or symptoms and the Veteran'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 (2006).

In this case, a VA examination was provided in February 2008.
No opinion was provided by the examiner.  However,
audiometric testing at that time showed normal hearing for
compensation purposes.  Accordingly, as no impaired hearing
loss disability for VA purposes had been shown, there was no
need for the examiner to provide any etiological opinion.
Therefore, no further development is required, even
considering McLendon.

The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran.  See Bernard v. Brown, 4
Vet. App. 384 (1993).  The claims file contains his service
treatment records, as well as post-service reports of private
treatment and examination.  Moreover, his statements in
support of his claim and a transcript of the hearing are of
record.  The Board has carefully reviewed such statements and
concludes that he has not identified further evidence not
already of record.  The Board has also perused the medical
records for references to additional treatment reports not of
record, but has found nothing to suggest that there is any
outstanding evidence with respect to the Veteran's claim.

For the above reasons, no further notice or assistance to the
Veteran is required to fulfill VA's duty to assist in the
development of the claims.  Smith v. Gober, 14 Vet. App. 227
(2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).

II.  Decision

The Board has reviewed all of the evidence in the Veteran's
claims folder.  Although the Board has an obligation to
provide reasons and bases supporting this decision, there is
no need to discuss, in detail, the extensive evidence of
record.  Indeed, the Federal Circuit has held that the Board
must review the entire record, but does not have to discuss
each piece of evidence.  Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000).  Therefore, the Board will
summarize the relevant evidence where appropriate, and the
Board's analysis below will focus specifically on what the
evidence shows, or fails to show.

The Veteran is claiming entitlement to service connection for
bilateral hearing loss.

Under relevant laws and regulations, service connection may
be granted for a disability resulting from disease or injury
incurred in or aggravated by active service.  38 U.S.C.A.
� 1131 (West 2002).  If a chronic disease is shown in
service, the subsequent manifestations of the same chronic
disease at any later date, however, remote, may be service
connected, unless clearly attributable to intercurrent
causes.  38 C.F.R. � 3.303(b) (2009).  However, continuity of
symptoms is required where a condition in service is noted
but is not, in fact, chronic or where a diagnosis of
chronicity may be legitimately questioned.  38 C.F.R.
� 3.303(b) (2009).

Further, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service.  38 U.S.C.A. � 1113(b) (West
2002); 38 C.F.R. � 3.303(d) (2009).

In evaluating the Veteran's hearing loss claim, it is
observed that the threshold for normal hearing is from 0 to
20 decibels with higher threshold levels indicating some
degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155,
157 (1993).  However, even where clinical hearing loss is
demonstrated, entitlement to service connection for impaired
hearing is subject to the requirements of 38 C.F.R. � 3.385,
which provide that, for the purpose of applying the laws
administered by VA, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent.

The Board must determine whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either case, or whether the preponderance of
the evidence is against the claim, in which case, the service
connection must be denied.  Gilbert v. Derwinski, 1 Vet. App.
49 (1990).

The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of service connection for bilateral hearing loss.
Notwithstanding the Veteran's assertions of hearing
difficulty, there is no competent medical evidence that
establishes that he has, or ever has had, bilateral hearing
loss recognized as a disability for VA compensation purposes.

At the August 2009 hearing, the Veteran testified that he was
currently experiencing severe difficulty hearing, and that
his hearing had been continuously deteriorating since his
time in service.  Additionally, the Veteran reported that he
was employed as a furniture mover post-service, and was
therefore not exposed to an occupationally noisy environment.
Furthermore, the Veteran's wife also corroborated his
testimony reemphasizing his deteriorated hearing.  It is
acknowledged that the Veteran is competent to report
observable symptoms such as hearing loss.  Layno v. Brown, 6
Vet. App. 46 (1994).

The Veteran has reported in-service exposure to weapons fire.
As his DD 214 indicated receipt of a marksman badge, such
exposure appears consistent with the circumstances of his
service.  38 U.S.C.A. � 1154(a).  However, despite such
exposure, and despite his reports of current hearing
difficulty, a grant of service connection is not warranted
here, as will be explained below.

A review of the service treatment records reveals no
complaints or treatment referable to the Veteran's hearing.
The expiration of term of service (ETS) examination conducted
on April 1986 revealed normal ears upon clinical evaluation
and audiometric testing revealed normal hearing.

Following discharge, post-service records contain no clinical
complaints, treatments, or findings related to the Veteran's
claim of bilateral hearing loss.  In fact, in February 2008,
the Veteran underwent a VA audiological evaluation provided
by a VA examiner.

On the authorized audiological evaluation in February 2008,
pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
5
10
30
LEFT
10
10
10
15
30

Speech audiometry revealed speech recognition ability of 96
percent in the right ear and of 100 percent in the left ear.

Based on the above, average puretone thresholds were 15
decibels in the right ear and 15 decibels in the left ear.
The audiologist reported that the Veteran's hearing was
within normal limits for rating purposes bilaterally, and
determined that it was not necessary to discuss etiology of
hearing loss.

Again the Veteran is competent to report that he endured
noise exposure during service and such exposure appears
consistent with his service.  However, at no time does the
record demonstrate hearing loss meeting the criteria under
38 C.F.R. � 3.385, precluding a grant of service connection
here.  Indeed, there is no competent medical evidence to show
that the Veteran has a current hearing loss disorder by VA
standards.

Thus, the Veteran has not brought forth competent evidence
from a medical professional of a current "disability" and
service connection cannot be granted.  See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated
"Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability." and held "[in] the absence
of proof of a present disability[,] there can be no valid
claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44
(1992).

In sum, there is no basis for a grant of service connection
for bilateral hearing loss.  As the preponderance of the
evidence is against the claim, the benefit-of-the-doubt rule
is not applicable.  See 38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).

ORDER

Entitlement to service connection for bilateral hearing loss
is denied.

____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: ANDREW J MULLEN

condition: knee

text:
Citation Nr: 1007000
Decision Date: 02/25/10    Archive Date: 03/05/10

DOCKET NO.  08-06 013	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim of service connection for a left knee
disorder, to include as secondary to a service-connected
right knee disorder.

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

ATTORNEY FOR THE BOARD

Scott Shoreman, Associate Counsel

INTRODUCTION

The Veteran had active service from July 1985 to January
1993.

This matter comes before the Board of Veterans' Appeals
(Board) from an August 2007 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).

FINDINGS OF FACT

Additional evidence submitted since the prior final April
1993 rating decision does not bear directly and substantially
upon the issue of service connection for a left knee
disorder, to include as secondary to a service-connected
right knee disorder.  In addition, it does not raise a
reasonable possibility of substantiating the claim and does
not, by itself or in conjunction with evidence previously
assembled, relate to an unestablished fact necessary to
substantiate the claim.

CONCLUSION OF LAW

Evidence received since the previous final decision in April
1993, in which the RO denied service connection for a left
knee disorder, to include as secondary to a service-connected
right knee disorder, is not new and material, and therefore
the claim may not be reopened.  38 U.S.C.A. �� 5108, 7105
(West 2002 & Supp. 2009); 38 C.F.R. �� 3.156(a), 20.1103
(2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits, as codified in pertinent part at 38
U.S.C.A. �� 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. �� 3.102, 3.159, 3.326(a) (2009).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide in accordance
with 38 C.F.R. � 3.159(b)(1).  This notice must be provided
prior to an initial unfavorable decision on a claim by the
RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).

If complete notice is not provided until after the initial
adjudication, such a timing error can be cured by subsequent
legally adequate VCAA notice, followed by readjudication of
the claim, as in a Statement of the Case (SOC) or
Supplemental SOC (SSOC).  Moreover, where there is an uncured
timing defect in the notice, subsequent action by the RO
which provides the claimant a meaningful opportunity to
participate in the processing of the claim can prevent any
such defect from being prejudicial.  Mayfield v. Nicholson,
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice
should not be presumed prejudicial, and that the burden of
showing harmful error rests with the party raising the issue,
to be determined on a case-by-case basis.  Shinseki v.
Sanders, 129 S. Ct. 1696 (2009).  In this case, the appellant
has not demonstrated any prejudicial or harmful error in VCAA
notice.

In March 2007 and October 2007 VA sent the Veteran letters
informing him of the types of evidence needed to substantiate
his claim and its duty to assist him in substantiating his
claim under the VCAA.  The letters informed the Veteran that
VA would assist him in obtaining evidence necessary to
support his claim, such as medical records, employment
records, or records from other Federal agencies.  He was
advised that it is his responsibility to provide or identify,
and furnish authorization where necessary for the RO to
obtain, any supportive evidence pertinent to his claim.  See
38 C.F.R. � 3.159(b)(1).  Although no longer required, the
appellant was also asked to submit evidence and/or
information in his possession to the RO.

The Board finds that the content of the letters provided to
the Veteran complied with the requirements of 38 U.S.C.A.
� 5103(a) and 38 C.F.R. � 3.159(b) regarding VA's duty to
notify and assist.  In addition, the August 2007 rating
decision, January 2008 SOC, and June 2008 SSOC explained the
basis for the RO's action, and the SOC and SSOC provided him
with additional periods to submit more evidence.  It appears
that all obtainable evidence identified by the Veteran
relative to his claim has been obtained and associated with
the claims file, and that neither he nor his representative
has identified any other pertinent evidence, not already of
record, which would need to be obtained for a fair
disposition of this appeal.  It is therefore the Board's
conclusion that the Veteran has been provided with every
opportunity to submit evidence and argument in support of his
claims, and to respond to VA notices.

In addition to the foregoing harmless-error analysis, we note
that the decision of the Court in Dingess v. Nicholson, 19
Vet. App. 473 (2006) requires more extensive notice in claims
for compensation, e.g., as to potential downstream issues
such as disability rating and effective date.  This
requirement was fulfilled in the March 2007 and October 2007
letters which VA sent to the Veteran.

The Board also notes that in Kent v. Nicholson, 20 Vet. App.
1 (2006), the Court held that VA must notify a claimant of
the evidence and information that is necessary to reopen the
claim and the evidence and information that is necessary to
establish his entitlement to the underlying claim.  In this
case, the Veteran has been amply informed of the evidence
necessary to establish his eligibility for VA benefits and of
the necessity of presenting new and material evidence along
with that definition. Thus, the Board concludes that the
notifications received by the Veteran adequately complied
with the VCAA and subsequent interpretive authority, and that
he has not been prejudiced by the notice and assistance
provided.

Accordingly, we find that VA has satisfied its duty to assist
the Veteran in apprising him as to the evidence needed, and
in obtaining evidence pertinent to his claim under the VCAA.
Therefore no useful purpose would be served in remanding this
matter for yet more development.  Such a remand would result
in unnecessarily imposing additional burdens on VA, with no
additional benefits flowing to the Veteran.  The Court of
Appeals for Veteran Claims has held that such remands are to
be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

It is the Board's responsibility to evaluate the entire
record on appeal.  See 38 U.S.C.A. � 7104(a).  When there is
an approximate balance in the evidence regarding the merits
of an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant.  38 U.S.C.A. � 5107(b); 38 C.F.R. �
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail.  The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.

II.  Relevant Law, Factual Background, and Analysis

Under 38 U.S.C.A. � 5108, the Secretary must reopen a finally
disallowed claim when new and material evidence is presented
or secured with respect to that claim.  Kightly v. Brown, 6
Vet. App. 200 (1994).  New and material evidence is defined
as evidence not previously submitted to agency decision
makers which, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim, which is neither
cumulative nor redundant, and which raises a reasonable
possibility of substantiating the claim.  38 C.F.R.
� 3.156(a).  Only evidence presented since the last final
denial on any basis (either upon the merits of the case, or
upon a previous adjudication that no new and material
evidence had been presented) will be evaluated, in the
context of the entire record.  Evans v. Brown, 9 Vet. App.
273 (1996).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
U.S. Court of Appeals for the Federal Circuit noted that new
evidence could be sufficient to reopen a claim if it could
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it would not be enough to convince the Board to
grant a claim.  In determining whether evidence is new and
material, the credibility of the evidence is generally
presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513
(1992).

In Elkins v. West, 12 Vet. App. 209 (1999), the Court of
Appeals for Veterans Claims held the Board must first
determine whether the appellant has presented new and
material evidence under 38 C.F.R. � 3.156(a) in order to have
a finally denied claim reopened under 38 U.S.C.A. � 5108.
Then, if new and material evidence has been submitted, the
Board may proceed to evaluate the merits of the claim, but
only after ensuring that VA's duty to assist has been
fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321,
328 (1999).

Before the Board may reopen a previously denied claim, it
must conduct an independent review of the evidence to
determine whether new and material evidence has been
submitted sufficient to reopen a prior final decision.  The
Board does not have jurisdiction to consider a claim which
has been previously adjudicated unless new and material
evidence is present, and before the Board may reopen such a
claim, it must so find.  Barnett v. Brown, 83 F.3d 1380, 1383
(Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1
(1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38
U.S.C.A. �� 5108, 7104(b).  If the Board finds that new and
material evidence has not been submitted, it is unlawful for
the Board to reopen the claim.  See McGinnis v. Brown, 4 Vet.
App. 239, 244 (1993).

With the above criteria in mind, the procedural history and
relevant evidence will be summarized.  An April 1993 rating
decision denied service connection for a left knee sprain.
The Veteran did not appeal that rating action, and it
therefore became final.  In February 2007, he filed a request
to reopen his claim for service connection for his present
left knee disorder, to include as secondary to his service-
connected right knee disorder.  He currently has service
connection in effect for a right knee disorder, characterized
as "right knee sprain," evaluated as 20 percent disabling.

Summarizing the evidence of record at the time of the April
1993 rating decision, the Veteran's service treatment records
do not show any treatment related to the Veteran's left knee.
On a November 1992 medical history report the Veteran
indicated that he did not have and had never had arthritis,
rheumatism, bursitis, lameness, or bone, joint or other
deformity.  At an August 1993 VA examination the Veteran had
low grade bilateral knee pain.  He said that his knees had
been hurting him for some time, especially when he ran.  The
knees had a full range of motion from 0 degrees to 130
degrees.  There was no patellofemoral maltracking,
ligamentous instability, or evidence of meniscal tears.

Regarding the evidence of record submitted in conjunction
with the Veteran's request to reopen his claim, January 2004
X-rays from VA treatment did not show significant bone or
joint abnormalities in either knee, and multiple linear
artifacts were noted bilaterally.  A left knee March 2005 MRI
from a private facility indicated that the Veteran had mild
chondromalacia of the medial patellar facet without focal
osteochondral fracture, a small meniscal or synovial cyst
along the posteromedial margin of the medial meniscus, mild
patellar tendinosis, and a meniscal tear, although there was
mild intrasubstance T1 signal intensity consistent with
mucoid degeneration.

At a February 2007 VA kinesiotherapy consultation the Veteran
presented with osteoarthritis of both knees, the right
greater than the left.  He could ambulate without assistive
devices.  He was educated and trained on strengthening and
stretching exercises and he was trained in using an assistive
device for walking because he had an antalgic gait.  A May
2007 X-ray of the left knee during VA treatment was within
normal limits.

The Veteran complained of a 15-year history of bilateral knee
pain at August 2007 VA primary care, and said that he had
been in physical therapy twice without an improvement in his
symptoms.  The February 2007 therapy had caused knee
swelling.  There was anterior knee pain that was worse with
bending, going up stairs, and squatting.  Increased activity
caused swelling, and the cane he used since February had
improved stability and balance.  His knee gave out
approximately once a week, although it was not specified
which knee this referred to.  On examination the Veteran's
left knee had 0 degrees of extension and 110 degrees of
flexion with mild effusion and no anterior, posterior, valgus
or varus instability.

At September 2007 VA primary care treatment the Veteran
complained of multiple joint pain, including bilateral knee
pain.  The assessment included knee pain.

The Veteran wrote in an October 2007 statement that, in the
previous month, a VA treating doctor told him that his
current left knee disorder was secondary to his service-
connected right knee disorder.  It is noted that the
treatment records do not contain such a statement.

At a November 2007 VA examination the Veteran complained of
bilateral mechanical knee pain that was an eight out of ten
in intensity.  He reported left knee flare-ups with
mechanical knee pain that was a ten out of ten in intensity
about once every three to four days that would last two to
four hours.  In addition, he had bilateral knee effusion and
occasional episodes of left knee patellar pseudo-locking on
an almost daily basis.  He denied any acute injuries to the
left knee, and he described the spontaneous onset of global
mechanical knee pain in 2004.  On examination the knees were
normal appearing without visible arthropathy or effusion.
There was no ligamentous laxity, McMurray's sign was
negative, and patellar compression test was negative.  Left
knee extension was 0 degrees both pre- and post-repetitive
motion, and flexion was 0 to 110 degrees both pre and post
repetitive motion and flexion.  The VA examiner wrote in
January 2008 that it was less likely than not that the
Veteran's current left knee condition was related to his
service-connected right knee condition.  She noted that a
review of the orthopedic literature revealed no credible,
peer reviewed studies supporting the contention that
posttraumatic degenerative changes of one joint may induce
degenerative changes in another joint of the affected or
contralateral extremity.

February 2008 X-rays of the left knee from VA treatment
showed no evidence of joint space narrowing or osteophytic
spurring.  There was no evidence of a joint effusion or loose
body, and the patella showed no lateral subluxation or tilt.
The primary diagnostic code was normal.

Having reviewed the complete record, the Board finds that new
and material evidence has not been submitted to reopen the
claim for service connection for a left knee disorder, to
include as secondary to the service-connected right knee
disorder.  Although the treatment records submitted since the
April 1993 rating decision do constitute new evidence, in
that they were not of record at the time of the previous
decision, they are not material evidence, because they do not
bear directly and substantially on the issue at hand.  In
this regard, these reports do not, nor does any of the
additional evidence submitted in connection with the claim to
reopen, demonstrate that the Veteran currently has a left
knee sprain which is of in-service origin on a direct or
secondary basis.  Specifically, none of the new evidence
provides competent information to link his currently
diagnosed osteoarthritis to his military service or any
incident that occurred therein, or to his service-connected
right knee disorder, on either a secondary causation or
aggravation basis.

We recognize the sincerity of the arguments advanced by the
Veteran that his left knee sprain, to include as secondary to
a service-connected right knee sprain, is service connected.
However, the resolution of issues that involve medical
knowledge, such as the diagnosis of a disability and the
determination of medical etiology, requires professional
evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992).  It is true that the Veteran's lay statements may be
competent to support a claim for service connection by
supporting the occurrence of lay-observable events or the
presence of disability or symptoms of disability subject to
lay observation.  38 U.S.C.A. � 1153(a); 38 C.F.R.
�� 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d
1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331
(Fed. Cir. 2006) (addressing lay evidence as potentially
competent to support presence of disability even where not
corroborated by contemporaneous medical evidence).  See also
Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a
layperson may comment on lay-observable symptoms).  However,
a knee disorder such as the osteoarthritis for which service
connection is claimed herein requires specialized training
for a determination as to diagnosis and causation, and is
therefore not susceptible of lay opinions on etiology.

In summary, the Board finds that the evidence received in
conjunction with the request to reopen is not new and
material, and does not serve to reopen the claim for service
connection for a left knee sprain, to include as secondary to
a service-connected right knee sprain.  38 U.S.C.A. �� 5108,
7105; 38 C.F.R. � 3.156(a).  Since the Board has found that
the evidence is not new and material, no further adjudication
of this claim is warranted.  See Kehoskie v. Derwinski, 2
Vet. App. 31 (1991).

ORDER

New and material evidence not having been submitted, the
claim for service connection for a left knee disorder, to
include as secondary to a service-connected right knee
disorder, is denied.

___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: DEMETRIOS G ORFANOUDIS

disposition: remanded

text: As the appellant responded timely to the Board's letter, due process mandates that another hearing be conducted so that the appellant may provide evidence in support of his claim. Therefore, a remand is required for the scheduling of a Travel Board hearing. See 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2009). Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, this case is REMANDED to the AMC/RO for the following development:

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

text:
Citation Nr: 1008000
Decision Date: 03/03/10    Archive Date: 03/11/10

DOCKET NO.  07-24 217A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office
in St. Petersburg, Florida

THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for degenerative
changes of the right and left knees.

3.  Entitlement to service connection for a tremor of the
right and left hands, to include as a qualifying chronic
disability under 38 C.F.R. � 3.317.

4.  Entitlement to an initial disability rating in excess of
10 percent for a fracture of the second metatarsal of the
left foot.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel

INTRODUCTION

The appellant had service as a member of the Army Reserves
and the Army National Guard from 1982 to 2004.  During that
time, he had periods of active duty or active duty for
training from April 1982 to October 1982, from May 1988 to
October 1988, from January 1991 to April 1991, and from March
2003 to February 2004.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2006 rating decision of the
Department of Veterans Affairs (VA), a Regional Office (RO),
in St. Petersburg, Florida.

In January 2009, the appellant testified at a personal
hearing over which a Veterans Law Judge of the Board presided
while at the RO.  A transcript of that hearing has been
associated with the appellant's claims file.  Following that
hearing, the Board issued a Decision/Remand in April 2009.
In that action, the Board denied the appellant's claim for
entitlement to service connection for bilateral hearing loss.
The remaining four issues were remanded for the purpose of
obtaining additional evidence.  The claim has since been
returned to the Board for review.

During the course of this appeal, the RO determined that the
appellant's fracture of the left foot second metatarsal
warranted an initial disability rating of 10 percent.
Applicable law provides that absent a waiver, a claimant
seeking a disability rating greater than assigned will
generally be presumed to be seeking the maximum benefit
allowed by law and regulation, and that a claim remains in
controversy where less than the maximum available benefits
are awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The
appellant has not withdrawn the appeal as to the issue of a
disability rating greater than assigned, therefore, the issue
remains in appellate status.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

As noted above, the appellant did testify at a Travel Board
hearing at the RO before a Veterans Law Judge.  See 38 C.F.R.
� 20.700 (2009).  Since the Board issued its Decision/Remand
of April 2009, the Veterans Law Judge that the appellant
provided testimony before has retired.  In January 2010, the
Board sent the appellant a letter advising him that the law
requires that the Veterans Law Judge who conducts a hearing
on appeal must participate in any decision made on that
appeal.  The Board requested that the appellant indicate
whether he wished to have another hearing.

In January 2010, prior to the promulgation of a decision in
the appeal, the appellant responded to the Board's letter
indicating that he indeed wanted another Travel Board
hearing.

As the appellant responded timely to the Board's letter, due
process mandates that another hearing be conducted so that
the appellant may provide evidence in support of his claim.
Therefore, a remand is required for the scheduling of a
Travel Board hearing.  See 38 U.S.C.A. � 7107(b) (West 2002);
38 C.F.R. � 20.700(a) (2009).  Therefore, to ensure that VA
has met its duty to assist the claimant in developing the
facts pertinent to the claim, this case is REMANDED to the
AMC/RO for the following development:

The RO/AMC shall schedule the appellant
for a hearing before a traveling Veterans
Law Judge at the RO, in accordance with
applicable law.  All correspondence
pertaining to this matter should be
associated with the appellant's claims
file.  The RO/AMC may wish to offer the
appellant, at his option, a
videoconference hearing at the RO, with a
Veterans Law Judge sitting in Washington,
DC.

Thereafter, the case should then be returned to the Board for
further appellate consideration, if otherwise in order.  The
Board intimates no opinion as to the ultimate outcome of this
case.  The appellant need take no action unless otherwise
informed.  The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2009).

_________________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2009).


judge_norm: MICHAEL D LYON

text:
Citation Nr: 1009000
Decision Date: 03/10/10    Archive Date: 03/17/10

DOCKET NO.  07-23 419	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUE

Entitlement to an initial evaluation in excess of 60 percent
for systemic lupus erythematosus.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

J. L. Prichard, Counsel

INTRODUCTION

The Veteran had active service from June 1981 to October 1991
and from January 2004 to October 2004.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a rating decision of the Louisville,
Kentucky, Regional Office (RO) of the Department of Veterans
Affairs (VA).  A decision granted service connection for
systemic lupus erythematosus.  It also granted a 10 percent
evaluation for this disability, effective from October 14,
2004.

After the Veteran initiated an appeal of the 10 percent
evaluation assigned for lupus in the May 2006 rating
decision, a September 2008 rating decision increased the
evaluation for this disability to 60 percent, also effective
from October 14, 2004.  However, a Veteran is generally
presumed to be seeking the maximum benefit allowed by law and
regulation, and a claim remains in controversy where less
than the maximum available benefit is awarded.  AB v. Brown,
6 Vet. App. 35 (1993).  As the Veteran has not indicated that
the 60 percent evaluation satisfies his claim, his case
remains on appeal to the Board.

A claim for a total rating is undergoing development, but has
not been developed as part of this appeal.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the Veteran
if further action is required.

REMAND

The Veteran contends that the initial 60 percent evaluation
assigned to his service connected systemic lupus
erythematosus is inadequate.  He believes that this
disability is totally disabling.

After certification of the case to the Board, in May 2009,
the Veteran submitted a copy of a May 2009 award letter from
the Social Security Administration (SSA).  This letter states
that a decision had been made that was favorable to the
Veteran, and which found him to be disabled due to systemic
lupus erythematosus as well as other disabilities.

A review of the claims folder reveals that a copy of the SSA
decision referenced in the May 2009 award letter is not
contained in the claims folder.  Furthermore, the medical
records that were relied on to reach this decision were not
cited, and there is no indication that they are in the claims
folder.

The Courts have imposed a duty to obtain SSA decisions and
underlying medical records where they might be pertinent.
Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Voerth v.
West, 13 Vet. App. 117, 121 (1999); Murincsak v. Derwinski, 2
Vet. App. 363, 372 (1992).

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain from the Social
Security Administration the records
pertinent to the Veteran's claim for
Social Security disability benefits as
well as the medical records relied upon
concerning that claim.  These records
shall then be associated with the claims
folder.

2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the Veteran
and representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The Veteran need take no action until
otherwise notified.

The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2009).

_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2009).


judge_norm: JOY A MCDONALD

text:
Citation Nr: 1010000
Decision Date: 03/16/10    Archive Date: 03/24/10

DOCKET NO.  03-20 087	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia

THE ISSUE

Entitlement to an increased evaluation for posttraumatic
stress disorder, currently evaluated as 30 percent disabling.

REPRESENTATION

Appellant represented by:	Sean A. Ravin, Esq.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L.J. Bakke-Shaw, Counsel

INTRODUCTION

The Veteran served on active duty from May 1948 to February
1950 and from November 1952 to August 1954.  This appeal
arises before the Board of Veterans' Appeals (Board) from a
rating decision rendered by the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West
Virginia.

In a June 2007 decision, the Board denied entitlement to an
increased evaluation for posttraumatic stress disorder
(PTSD), currently evaluated as 30 percent disabling.  The
Veteran appealed these issues to the United States Court of
Appeals for Veterans Claims (Court).  In a September 2009
memorandum decision, the Court set aside the June 2007 rating
decision and remanded this appeal for development in
compliance with its instructions.

REMAND

The Court set aside the June 2007 Board decision that denied
the claim of entitlement to a rating in excess of 30 percent
for PTSD as the Board failed to discuss whether staged
ratings were appropriate and the Board failed to address the
error made by a VA examiner who examined the Veteran in 2007
for his PTSD.  The examiner stated that the Veteran had not
received any outpatient treatment for a mental disorder.
However, the record reflects that the Veteran received
outpatient therapy beginning in August 1999.

The Board has reviewed the record and determines that remand
is appropriate to obtain an adequate VA examination for PTSD,
to include review of all records of treatment accorded the
Veteran for his service-connected PTSD.  See Nieves-Rodriquez
v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet.
App. 303 (2007).

In this regard, any additional VA treatment records and
identified private medical records should be obtained to
ensure that the record is complete.  See

Accordingly, the case is remanded for the following actions:

1.  The RO must contact the Veteran and
afford him the opportunity to identify or
submit any additional pertinent evidence
in support of his claim, to include all
pertinent VA and private treatment
records.  In particular, the RO must ask
the Veteran to identify his family
doctor, who the Veteran identified in the
2007 VA examination as prescribing Xanax
for his mental disorder, and the private
physician identified in the 2006 Vet
Center entry indicating that the Veteran
was no longer receiving treatment at the
Vet Center but was being treating by VA
and a private physician.  Additionally,
the RO must obtain all treatment records
from the VA Medical Center (VAMC) in
Huntington, West Virginia and the VAMC in
Ann Arbor, Michigan from July 2004 to the
present, and from any other VA facility
the Veteran identifies.  Based on his
response, the RO must attempt to procure
copies of all records which have not
previously been obtained from identified
treatment sources.  All attempts to
secure this evidence must be documented
in the claims file by the RO.  If, after
making reasonable efforts to obtain named
records the RO is unable to secure same,
the RO must notify the Veteran and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; (c) describe any further action
to be taken by the RO with respect to the
claim; and (d) that the Veteran is
ultimately responsible for providing the
evidence, as required by 38 C.F.R.
� 3.159(e).  The Veteran and his
representative must then be given an
opportunity to respond.

2.  The RO must notify the Veteran that
failure to cooperate with these actions
may result in denial of the claim.
38 C.F.R. � 3.158 (2009).

3.  Thereafter, the Veteran must be
afforded the appropriate VA psychiatric
examination to determine the current
severity of his service-connected PTSD.
The claims file must be made available to
and reviewed by the examiner in
conjunction with the examination, and the
examination report must note that the
claims file was reviewed.  The examiner
must provide accurate and fully
descriptive assessments of all
psychiatric symptoms.  If the Veteran has
difficulty articulating his symptoms, the
examiner must document the specific
actions taken to resolve this.  The
examiner must comment upon the presence
or absence, and the frequency or severity
of the following symptoms due to PTSD:
flattened affect; circumstantial,
circumlocutory, or stereotyped speech;
difficulty in understanding complex
commands; impairment of short- and
long-term memory; impaired judgment;
impaired abstract thinking; disturbances
of motivation or mood; difficulty in
establishing and maintaining effective
work and social relationships; suicidal
ideation; obsessional rituals which
interfere with routine activities;
intermittently illogical, obscure, or
irrelevant speech; near-continuous panic
or depression affecting the ability to
function independently, appropriately, or
effectively; impaired impulse control;
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances; inability to establish and
maintain effective relationships; gross
impairment in thought processes or
communication; persistent delusions or
hallucinations; grossly inappropriate
behavior; persistent danger of hurting
self or others; intermittent inability to
perform activities of daily living;
disorientation to time or place; and
memory loss for names of close relatives,
own occupation, or own name.  The
examiner must also enter a complete
multiaxial evaluation, and assign a
Global Assessment of Functioning score
together with an explanation of what the
score represents in terms of the
Veteran's psychological, social, and
occupational functioning.  The examiner
must also elicit from the Veteran and
record for clinical purposes, a full work
and educational history.  Based on the
review of the claims file, the examiner
must provide an opinion as to whether the
Veteran is unable to obtain or retain
employment due Based on the review of the
claims file, the examiner must provide an
opinion as to whether the Veteran is
unable to obtain or retain employment due
to his PTSD, consistent with his
education and occupational experience,
irrespective of age and any
nonservice-connected disorders.  A
complete rationale for all opinions
expressed must be given.  If the examiner
cannot provide the requested opinions
without resorting to speculation, it must
be so stated, and the examiner must
provide the reasons why such opinions
would require speculation.  The report
must be typed.

4.  The RO must notify the Veteran that
it is his responsibility to report for
any scheduled examination and evaluation
and to cooperate in the development of
the claims.  The consequences for failure
to report for VA examination without good
cause may include denial of the claim.
38 C.F.R. � 3.158, 3.655 (2009).  In the
event that the Veteran does not report
for the scheduled examination,
documentation must be obtained which
shows that notice scheduling the
examination was sent to the last known
address.  It must also be indicated
whether any notice that was sent was
returned as undeliverable.

5.  After undertaking any other
development deemed essential in addition
to that specified above, the RO must
readjudicate the Veteran's claim for
entitlement to an increased evaluation
for his service-connected PTSD, currently
evaluated as 30 percent disabling.  The
RO must specifically address whether
staged evaluations are appropriate at any
time during the pendency of this appeal.
If the issue on appeal remains denied, a
supplemental statement of the case must
be provided to the Veteran and his
representative, and they must be provided
an opportunity to respond.  Thereafter,
the appeal must be returned to the Board
for appellate review.

6.  THIS APPEAL HAS BEEN ADVANCED ON THE
BOARD'S DOCKET.  This claim must be
afforded expeditious treatment.

No action is required by the Veteran until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2009).