judge_norm: MARJORIE A AUER

condition: back

text:
Citation Nr: 1331000
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  11-00 104	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota

THE ISSUES

1.  Entitlement to a total disability rating due to individual unemployability (TDIU).

2.  Whether new and material evidence has been received in order to reopen a claim for service connection for a right knee disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted.

3.  Whether new and material evidence has been received in order to reopen a claim for service connection for a low back disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted.

4.  Whether new and material evidence has been received in order to reopen a claim for service connection for a right ankle disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted.

5.  Whether new and material evidence has been received in order to reopen a claim for service connection for a left ankle disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted.

6.  Entitlement to service connection for a right hip disorder, to include as secondary to service-connected a cervical spine disorder.

7.  Entitlement to service connection for a left hip disorder, to include as secondary to service-connected a cervical spine disorder.

REPRESENTATION

Veteran represented by:	South Dakota Division of Veterans Affairs

ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel

INTRODUCTION

The Veteran had active duty service from December 1952 to January 1973.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Sioux Falls, South Dakota Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the Veteran's requests to reopen claims for service connection for a right knee disorder, a lumbar spine disorder and a right and left ankle disorder.  In addition, his claims for service connection for a right and left hip disorder were denied.

In addition, the Veteran appeals from an October 2011 rating decision which, in pertinent part, denied his claim for TDIU.

A review of the paperless, electronic (Virtual VA) claims processing system reveals VA treatment records dated through January 2013 as well as a February 2013 VA examination report.  A March 2012 supplemental statement of the case (SSOC) noted consideration of VA treatment records dated through March 2012.  The Veteran has not waived RO consideration of the VA treatment records dated after March 2012 or the February 2013 VA examination report.  With regards to VA treatment records dated after March 2012 and the February 2013 VA examination report, and to the extent that the benefits sought have been fully allowed on appeal, a waiver of RO consideration of these records is not required.  Moreover, the remaining claims on appeal are being remanded, which will allow for RO consideration of these records.  See 38 C.F.R. � 20.1304 (2012).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

The issues of entitlement to a TDIU as well as the requests to reopen claims for service connection for a right knee disorder, a low back disorder and a bilateral ankle disorder are addressed below.  The remaining claims remaining on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.

FINDINGS OF FACT

1.  The competent evidence on the question of whether the Veteran is unable to secure and maintain substantially gainful employment as a result of his various service-connected disabilities, including his cervical degenerative joint disease, upper extremity radiculopathy and bilateral shoulder degenerative joint disease is, at least, in relative equipoise.

2.  In a final decision issued in August 2003, the RO denied the Veteran's claim of entitlement to service connection for a right knee condition.

3.  Evidence added to the record since the final August 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right knee condition.

4.  In a final decision issued in March 2004, the RO denied the Veteran's claim of entitlement to service connection for a low back condition.

5.  Evidence added to the record since the final March 2004 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back condition.

6.  In a final decision issued in March 2004, the RO denied the Veteran's requests to reopen a claim of entitlement to service connection for a right ankle condition.

7.  Evidence added to the record since the final March 2004 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's requests to reopen a claim of entitlement to service connection for a right ankle condition.

8.  In a final decision issued in March 2004, the RO denied the Veteran's requests to reopen a claim of entitlement to service connection for a left ankle condition.

9.  Evidence added to the record since the final March 2004 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's requests to reopen a claim of entitlement to service connection for a left ankle condition.

CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU due to service-connected disabilities have been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.341, 4.1, 4.16 (2012).

2.  The August 2003 rating decision that denied the Veteran's claim of entitlement to service connection for a right knee disorder is final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2012).

3.  New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2012).

4.  The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for a low back condition is final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2012).

5.  New and material evidence has been received to reopen the claim of entitlement to service connection for a low back condition.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2012).

6.  The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for a right ankle condition is final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2012).

7.  New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle condition.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2012).

8.  The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for a left ankle condition is final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2012).

9.  New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle condition.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As the Board's decisions to reopen the Veteran's claims of entitlement to service connection for a right knee disorder, a lumbar spine disorder and a bilateral ankle disorder as well its decision to grant entitlement to TDIU are completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  However, consideration of the merits of the reopened claims is deferred pending additional development consistent with the VCAA.

II. TDIU

The Veteran contends that he is unable to work due to his various service-connected disabilities, including the symptomatology associated with his service-connected cervical spine, upper extremity radiculopathy and bilateral shoulder disorders. The Board finds that the preponderance of the evidence favors that position and hence TDIU is warranted.

A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16.   A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. �� 3.340, 3.341, 4.16(a).  Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities.  See 38 C.F.R. �� 3.341, 4.16, 4.19.

The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether a veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The United States Court of Appeals for Veterans Claims (Court) has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.  38 C.F.R. �� 3.321, 3.340, 3.341, 4.16.

The Veteran's current service-connected disabilities include cervical degenerative joint disease, rated as 30 percent disabling; dysphagia associated with cervical degenerative joint disease, rated as 30 percent disabling; left upper extremity cervical radiculopathy, rated as 20 percent disabling; right and left lower extremity varicosities, each rated as 10 percent disabling; hemorrhoids, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right and left hand degenerative joint disease of the interphalangeal, each rated as 10 percent disabling and right and left shoulder degenerative joint disease, each rated as 10 percent disabling.  His combined rating is 90 percent.  See 38 C.F.R. � 4.25.  This combined rating satisfies the statutory requirements for TDIU.  See 38 C.F.R. � 4.16(a).

In an April 2011 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran stated that he had a high school education.  He indicated that he had worked as an aviation mechanic during service and he last worked full-time in 1996 as mechanic.  He reported that he had worked part-time in a customer service position from 1997 to 2010.

Turning to the question of whether the Veteran is unable to secure or follow any form of substantially gainful occupation due to his service-connected disabilities, the Board notes that the record contains several opinion which must be considered and weighed.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).

The first of these opinions is reflected in an April 2012 opinion from the Veteran's treating VA physician.  The physician opined that it was doubtful that the Veteran would be able or work or maintain a full-time job in view of all of his service-connected disabilities and that the Veteran's service-connected disabilities would likely prevent him from being gainfully employed.  The Board also notes an April 2011 statement from the Veteran's former employer, who indicated that the Veteran was not reappointed to his customer service position in 2011 due to his arthritic conditions, including his back and shoulders, and detailed the difficulty the Veteran had in physically performing the various administrative tasks required for his job.

The second of these opinions is reflected in a July 2012 examination report.  The VA examiner opined that the Veteran's service-connected disabilities did not preclude him from light-desk type work-such as answering a telephone and light computer work-as long he was afforded appropriate rest breaks.  However, this examiner did not address the April 2011 statement from the Veteran's former employer.

In the instant case, the Board can find no reason to accord more probative weight to the VA examiner's opinion or to the VA provider's opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history).  In this regard, both opinions were provided by qualified medical professionals.  Moreover, each medical opinion reflects consideration of the Veteran service-connected disabilities and his employment history.

In sum, the record contains a competent opinion indicating that the Veteran was unable to secure or follow a substantially gainful occupation due to impairment resulting from his service-connected disabilities, and another competent, seemingly equally probative opinion indicating that the Veteran was able to secure or follow substantially gainful occupation, specifically light-desk type work.  As the medical opinion evidence on the question of whether the Veteran was able to secure or follow substantially gainful occupation is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that he is not able to do so.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  See 38 C.F.R. � 3.102.  See also 38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for TDIU are met.

III.  Petitions to Reopen

A.  Pertinent Statutes and Regulations

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. � 3.303.

Under 38 C.F.R. � 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C.A. � 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.")

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309.

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. � 3.310.  That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. � 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. � 7105(b) and (c); 38 C.F.R. �� 3.160(d), 20.200, 20.201, 20.202, and 20.302(a).

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

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

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

B.  Right Knee

The Veteran previously claimed entitlement to service connection for a right knee disorder in September 2002.   In an August 2003 rating decision, the RO denied service connection as the service treatment records were negative for complaints, treatments or diagnosis of a right knee disorder and the post-service treatment records did not show evidence relating his right knee to service.  The Veteran did not appeal this August 2003 rating decision and it is final.  38 U.S.C.A. � 7105(c); 38 C.F.R. �� 3.104, 20.302, 20.1103.

The Board has considered the applicability of 38 C.F.R. � 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for a right knee disorder was received prior to the expiration of the appeal period stemming from the August 2003 rating decision.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

Evidence received since the August 2003 rating decision consists of VA treatment records dated through November 2012, a December 2008 opinion from Dr. J. M., a July 2009 VA examination report and the Veteran's lay statements.  In this regard, the December 2008 opinion from Dr. J. M. indicated that the Veteran's military activities have likely been the source of attritional changes and degenerative findings that were currently producing lower extremity difficulties.  A July 2009
VA examiner opined that the Veteran's right knee degenerative joint disease was less likely as not caused by, a result of, or aggravated by his cervical spine disorder as his cervical spine disorder caused some loss of motion but did not cause him significant amounts of pain by his history, that physical examination did not show that the cervical spine disorder caused him any mechanical issues that could cause pain or problems in the knee and that the available medical literature did not demonstrate that a cervical spine disorder can cause osteoarthritis or arthralgias in the lower extremities.

The Veteran has also submitted statements describing symptoms through the present time.  The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted.  See Layno, supra.

Presuming the credibility of the Veteran's statements pursuant to Justus and in light of the newly submitted opinion from Dr. J. M. that addresses a potential nexus between the Veteran's right knee disorder and service, the Board finds that the evidence received since the August 2003 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection.  See 38 C.F.R. � 3.156(a).  In this regard, the Veteran's claim for a right knee disorder was previously denied as there was no nexus to service.  The RO had determined that a VA examination to address the etiology of such a disorder was necessary to decide the claim.  See Shade, supra.  Moreover, while the July 2009 VA examiner offered a negative opinion, such addresses the etiology of the Veteran's right knee disorder and, as such, offers a more complete view of the disorder.  Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for a right knee disorder is reopened.

C.  Low Back and Bilateral Ankle Disorders

The Veteran previously claimed entitlement to service connection for a low back and a bilateral ankle disorder in September 2002.  In a March 2004 rating decision, the RO denied service connection for a low back disorder as the clinical records did not establish a permanent residual or chronic disability despite in-service treatment for a low back condition.  In addition, the RO had reconsidered its August 2003 denial of service connection for a bilateral ankle disorder due to the receipt of new evidence, and again denied the claim as the bilateral ankle disorders were not occurred in or caused by service.  The Veteran did not appeal this March 2004 rating decision and it is final.  38 U.S.C.A. � 7105(c); 38 C.F.R. �� 3.104, 20.302, 20.1103.

The Board has considered the applicability of 38 C.F.R. � 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claims for service connection for a low back or a bilateral ankle disorder was received prior to the expiration of the appeal period stemming from the March 2004 rating decision.  See also Bond, supra; Roebuck, supra; Muehl, supra.

Evidence received since the March 2004 rating decision consists of VA treatment records dated through November 2012, a December 2008 opinion from Dr. J. M., a July 2009 VA examination report and the Veteran's lay statements.  In this regard, the December 2008 opinion from Dr. J. M. indicated that the Veteran's military activities have likely been the source of attritional changes and degenerative findings that were currently producing low back and lower extremity difficulties.  A July 2009 VA examiner opined that the Veteran's lumbar degenerative joint and disc disease and bilateral ankle arthralgias were less than likely caused or aggravated by service as service treatment records were silent for any ankle conditions and there was no post-service treatment for a spine condition until a 1985 fall at work.

The Veteran has also submitted statements describing symptoms through the present time.  The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted.  See Layno, supra

Presuming the credibility of the Veteran's statements pursuant to Justus and in light of the newly submitted opinion from Dr. J. M. that addresses a potential nexus between the Veteran's lumbar spine and ankle disorders and service, the Board finds that the evidence received since the March 2004 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claims of service connection.  See 38 C.F.R. � 3.156(a).  In this regard, the Veteran's claims for a lumbar spine and bilateral ankle disorders were previously denied as there was no nexus between a current disability and service.  The RO had determined that a VA examination to address the etiology of such disorders was necessary to decide the claims.  See Shade, supra.  Moreover, while the July 2009 VA examiner offered a negative opinion, such addresses the etiology of the Veteran's lumbar spine and bilateral ankle disorders and, as such, offers a more complete view of the disorders.  Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claims of entitlement to service connection for a lumbar spine and bilateral ankle disorders are reopened.

ORDER

Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards.

New and material evidence having been received, the claim for service connection for a right knee disorder is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for a low back disorder is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for a right ankle disorder is reopened; the appeal is granted to this extent only.

New and material evidence having been received, the claim for service connection for a left ankle disorder is reopened; the appeal is granted to this extent only.

REMAND

Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims remaining on appeal can be properly adjudicated.

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  For below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed right knee, lumbar spine, bilateral ankle and bilateral hip disorders.

The Veteran contends that he suffers from right knee, lumbar spine, bilateral ankle and bilateral hip disorders as a result of service or his service-connected cervical spine disorder.  Specifically, he contends that his disabilities were caused or aggravated by the impaired locomotion that had resulted from his service-connected cervical spine disorder.  In addition, the Veteran's representative has argued the claimed disabilities are actually rheumatoid arthritis, which had been found during the Veteran's service.  A July 2009 VA examination report provided opinions as to direct service connection and noted that the Veteran had no alteration in gait; the Veteran contends that he does have a limp and that this opinion was therefore inaccurate.  In addition, this July 2009 opinion did not address the contention that the Veteran suffers from rheumatoid arthritis that had manifested during service.  On remand, the Veteran should therefore be afforded a new VA examination to address all of his contentions.

Given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file.  In addition, in a December 2010 substantive appeal, the Veteran indicated that a November 2010 visit with Dr. "G" at the Ft. Meade VA Medical Center (VAMC) would be relevant to his case; such records are not contained in the claims file or in the Virtual VA processing system.  On remand, such records should be obtained.

As a final point, as detailed in the Introduction, additional VA treatment records were added to the Veteran's Virtual VA claims file after the issuance of the March 2012 SSOC.  Such records reflect VA treatment for the Veteran's disabilities, as well as the February 2013 VA examination report, which are pertinent to the remaining claims on appeal.  As such, the RO's adjudication of the claims must include consideration of all pertinent evidence added to the claims file since the March 2012 SSOC.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  Expedited handling is requested.)

1.  The Veteran's updated VA treatment records documenting treatment for his claimed right knee, lumbar spine, bilateral ankle and bilateral hip disorders should be obtained.  Such records dated through November 2012 from the Black Hills VAMC are located in the Veteran's claims file.  In addition, any treatment records from a November 2010 visit with Dr. Gebee at the Ft. Meade VAMC, as identified by the Veteran in a December 2010 substantive appeal, should be associated with the claims file.  Any response received in association with this request should be memorialized in the Veteran's claims file.

All efforts to obtain these records and any outstanding private records not already associated with the claims file should be documented in the claims file.  If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed.

2.  Following the completion of the above development and the receipt of any additional records, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed right knee, lumbar spine, bilateral ankle and bilateral hip disorders found to be present.  The examiner should review the claims folder and note such review in the examination report.  The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary.

The examiner is asked to furnish an opinion with respect to the following questions:

(a) Based on the evidence of record, can it be determined with a reasonable degree of medical certainty, that the Veteran has developed a disorder of the right knee, lumbar spine, bilateral ankle and/or bilateral hip?  If so, please specify the diagnosis.  The examiner should identify all such disorders that have been present at any time since December 2008.

(b) Is it at least as likely as not (50 percent or greater probability) that each such diagnosed right knee, lumbar spine, bilateral ankle and/or bilateral hip disorder had its onset during the Veteran's period of active duty service; or, was any such disorder caused by any incident or event that occurred during his period of service, to include complaints of back pain in July 1964?  The examiner should also comment on the Veteran's contention that his current disabilities were related to the finding of early rheumatoid arthritis in June 1963.  In addition, the examiner should comment on the impact, if any, of the Veteran's July 1985 fall from a vehicle.

(c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right knee, lumbar spine, bilateral ankle and/or bilateral hip disorders had been aggravated beyond the normal progress of the disorder by his service-connected cervical spine disorder?  If so, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.  The examiner should also comment on the Veteran's contention that his service-connected cervical spine disorder impaired his locomotion and resulted in his claimed right knee, lumbar spine, bilateral ankle and/or bilateral hip disorders.

In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion.  If the Veteran's reports are discounted, the examiner should provide a rationale for doing so.

A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board.

3.  If any benefits sought on appeal remains denied, the Veteran and his representative must be furnished with an appropriate supplemental statement of the case includes clear reasons and bases for all determinations, reflects review of all pertinent evidence of record (including VA medical records in the Virtual VA file) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the 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. 2012).

______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: J A MARKEY

disposition: remanded

text:
Citation Nr: 1332000
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-34 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUES

1.  Entitlement to service connection for throat pain.

2.  Entitlement to service connection for diabetes.

3.  Entitlement to service connection for hypertension as secondary to diabetes.

4.  Entitlement to service connection for pulmonary hypertension.

5.  Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes.

6.  Entitlement to service connection for an eye disability as secondary to diabetes.

7.  Entitlement to service connection for migraine headaches.

8.  Entitlement to service connection for restless leg syndrome.

9.  Entitlement to service connection for gastroesophageal reflux disease and hiatal hernia.

10.  Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel

INTRODUCTION

The Veteran served on active duty from March 1986 to February 1990 and from March 2003 to September 2003, with additional periods in the Air National Guard.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The case was remanded in April 2013 in order to provide the Veteran with a hearing.  The Veteran and his spouse testified at a hearing before a Decision Review Officer at the RO in October 2010; a transcript of this hearing has been associated with the record.

This case was remanded in April 2013.  Pursuant to the remand, the Veteran was provided with a hearing before the undersigned Veterans Law Judge at the RO.  A transcript has been associated with the record.

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

In this case, remand is necessary, in part, to clarify the dates of the Veteran's service, and to determine when the Veteran was on active duty, active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA).  Three periods of active duty have been confirmed-March 1986 to February 1990, March 2003 to September 2003, and October 2003 to February 2004.  However, it appears from the record and from the Veteran's reports that he had additional periods of active duty.  An April 2004 service treatment record reflects that the Veteran was on active duty at that time.  The Veteran has testified that he was on active duty while stationed at Wright-Patterson Air Force Base in 2004 and 2005.  He indicated that his last period of active duty ended in April 2005.  In addition, it appears from the Veteran's service personnel records that he had additional periods of service, but it is unclear whether these were periods of ACDUTRA or INACDUTRA.  As such, on remand, the Veteran's dates of all service should be confirmed and set forth in a memorandum in the file.

The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. � 3.159(c)(4) (2013).  VA has a duty to obtain records of treatment reported by a private physician.  Massey v. Brown, 7 Vet. App. 204 (1994).  The Veteran has contended that he had his tonsils removed in 2003, by a private provider.  These records are not part of the claims file.  On remand, they should be obtained and associated with the record.

Accordingly, the case is REMANDED for the following action:

1.  Contact the National Personnel Records Center (NPRC), the Veteran's Air Force reserve unit, and any other appropriate source to obtain a copy of the Veteran's complete Official Military Personnel File (OMPF), including all duty assignments, and verify all of the Veteran's actual periods of active duty, ACDUTRA and INACDUTRA.

VA is reminded that it should continue efforts to procure the relevant records relating to the Veteran's service until either the records are received, or until it receives specific information that the records sought do not exist or that further efforts to obtain them would be futile.  To the best of its abilities, VA should make a list of the Veteran's actual periods of active duty, ACDUTRA and INACDUTRA in the Air Force Reserves.  All records and/or responses received should be associated with the claims file.

2.  Take the necessary steps to obtain all private records pertaining to treatment of the Veteran's tonsil removal in 2003, in accordance with 38 C.F.R. � 3.159.  If additional information is needed to complete this request, the Veteran should be so advised of the specific information needed as well as any necessary medical releases.

3.  If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if 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. 2012).

_________________________________________________
J.A. MARKEY
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) (2012).


judge_norm: ROBERT C SCHARNBERGER

disposition: granted

text:
Citation Nr: 1333000
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-28 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada

THE ISSUE

Entitlement to service connection for strabismus, status-post surgical repair including diplopia.

REPRESENTATION

The Veteran represented by:    Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Russell P. Veldenz,  Counsel

INTRODUCTION

The Veteran had active service from April 2000 to May 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

A videoconference Board hearing was held in July 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In June 2011, the Board remanded the case to the RO for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

FINDINGS OF FACT

There is competent evidence that the Veteran was diagnosed with strabismus in service and after surgery in December 2005 and July 2006, the Veteran developed diplopia.

CONCLUSION OF LAW

Diplopia was incurred by the diagnosis and surgical repair of strabismus in active service.  38 U.S.C.A. �� 1110, 5107 (b) (West 2002); 38 C.F.R. � 3.303 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. �� 5103, 5103A, and implemented, in part, at 38 C.F.R � 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the claim for service connection for strabismus is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims to reopen is not necessary.

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. � 1110, 38 C.F.R. � 3.303.

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. � 3.303(a).

Service connection may be established by continuity of symptomatology after service under 38 C.F.R. � 3.303(b).  The Federal Circuit recently held that continuity of symptomatology under � 3.303(b) applies only to chronic diseases listed in � 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  Neither strabismus nor diplopia are listed as a disease under � 3.309 as a chronic disease.

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 C.F.R. � 3.303(d).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. � 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. � 5107(b).

Facts

At his entrance examination in August 1999, the Veteran's visual acuity was 20/20 bilaterally for near vision.  For distance vision, his right eye was 20/30 and his left eye was 20/20.  The Veteran, in a section marked "heterophoria," was noted to have "ES" to 2 degrees, his "EX" in degrees was zero, his "R. H." was 0, and his "L. H." was 0.5.

In June 2005, the Veteran was evaluated for alternate exotropia with a vertical component.  He reported he had this condition since early childhood but he was told he would be functional and surgical treatment was discouraged apart from an operation on his right eye when he was one.  He now tilted his head to the left to compensate.  The diagnosis was longstanding noncomittant extropia with primarily a left head tilt, but a right head tilt was also noted.  Because of this, his caregivers noted the Veteran had alternating exotropia, but he fixated more with his left eye than his right.  He also had a non-committant vertical component.

In October 2005, the Veteran had a worsening head tilt, increased headaches and tears, and decreased depth perception and 3D vision.  If he was tired, his right eye wandered up and out and he used his left eye.

The Veteran's service treatment records show that he had 2 in-service eye surgeries in December 2005 and in July 2006.  The records indicate the surgeries cut and moved muscles on the eyes to straighten the gaze and eliminate double vision.  The risks included misalignment and double vision.

After the first surgery, in June 2006, there had been improvement as the Veteran no longer needed to tilt his head and he regained rapid alteration.  The eyes, however, now deviated outward more.  Extropia was also noted.  The diagnosis was intermittent strabismus non-paralytic hypertropia.
In September 2006, after the second surgery the Veteran still had extropia but more separation of images without diplopia and he was back where he was before the surgery.  He had better control of his ocular alignment but manifested strabismus more, which on the day of the evaluation was attributed to jet lag.  No paralytic or traumatic eye deviation was seen.  Extraocular muscle motility was not restricted.

In June 2007, it was noted the Veteran had strabismus and his right eye was now cross-eyed.

The Veteran received a VA examination shortly after separation in August 2007.  He reported diplopia all the time except for a narrow central corridor.  Titling his head to the left sometimes helped with double vision.  The Veteran stated he had symptoms when he was between 4 to 5 years old and he was diagnosed with esotropia and had strabismus surgery.  After the surgery, he was diagnosed with lazy eye.  He wore glasses until he was a teenager and then used one eye or the other without discomfort or double vision.  In service, he was diagnosed with left exotropia and had the extraocular muscle surgery to straighten the eyes,  After the first operation, he remembered his right eye still deviated 6 prism diopeters and he started developing double vision.  He underwent the second surgery but that resulted in a deviation of 13 prism diopeters for the right eye and 14 prism diopeters for the left eye.  The second surgery did not help the double vision.

Currently, the Veteran stated his eye watered in the primary position or when he tilts his head to compensate.  Both eyes also itch.  It is difficult to refocus from near to far distances and vice versa.  He has floaters in his left eye all the time.

Upon examination, the right eye for distance in the unilateral cover test was 10 prism diopeters.  The examiner noted right eye exotropia and combined with a 4 prism diopeter finding, the Veteran also had right hypertropia.  The left eye was 15 prism diopeters and also exhibited left exotropia.  The same findings were elicited for near vision as well.  Diplopia was elicited in all fields of gaze except in the central vertical corridor of approximately 5 degrees.  The right eye corrected visual acuity far vision was 20/25 and near vision was 20/30.  The left eye was 20/20 corrected.
The examiner's diagnosis was refractive antimetropia (hyperopia and myopia) astigmatism, strabismus: exotropia plus hypertropia of the right eye and exotropia of the left.  The right eye also had strabismic amblyopia.  The examiner also stated the Veteran had diplopia present in all visual fields except for the central corridor related to the surgery and the strabismus.  The diagnosis list also included status post multiple strabismus surgeries.  There were two incidental diagnoses of allergic conjunctivitis and vitreous symeresis bilaterally, characterized as a benign condition.  The examiner also stated the Veteran did not have any injury or trauma affecting the field of sight.

The Veteran has contended that his strabismus existed prior to service and was aggravated (permanently worsened) by service.  He testified that strabismus was diagnosed originally when the Veteran was a child.  He also testified that his strabismus was a congenital eye disability.  He also testified it was aggravated by 2 in-service surgeries to correct it in December 2005 and in July 2006.   The first surgery had been somewhat beneficial because it had restored his 3D perception, but the second made things worse as he did not have diplopia before service.  He also had sensitivity to light, lost his 3D perception, and sometimes experiences headaches and dizziness.

Analysis

Initially, the Board notes strabismus is deviation of the eye which cannot be overcome.  Convergent strabismus is esotropia.  Divergent and external strabismus are exotropia.  Dorland's Illustrated Medical Dictionary, 1587, (27th ed. 1988).   Diplopia is double vision.  Dean v. Brown, 8 Vet. App. 449, 451 (1995).

There is some evidence that the Veteran had strabismus which may have preexisted entry into service.  The service treatment records contain the diagnosis of strabismus and portions of the treatment notes and subsequent medical records suggest that the Veteran had it at a young age, about 4 to 5 years old, and received surgical treatment.

A Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination.  38 U.S.C.A. � 1111.  The presumption of soundness is rebuttal by clear and unmistakable evidence that the disability preexisted service and was not aggravated by service.  38 C.F.R. � 3.304(b).

The Veteran did not give history of strabismus or prior eye surgery on the entrance examination and more importantly, the examination did not note the condition either.  The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. � 3.304(b); see also Crowe v. Brown, 7 Vet.App. 238, 245 (1994) (history of pre-service existence of a disease does not constitute a notation of such a condition to rebut presumption of soundness).  The Board is aware that upon entrance findings were noted in the "heterophoria" section of the entrance examination.  The examination, however, did not include a finding of strabismus or state these findings equated to strabismus.  As strabismus was not noted on entrance examination, the Veteran is presumed to have been in sound condition upon entry to service. 38 U.S.C.A. � 1111.

As evidence of record does not clearly and unmistakably establish that the Veteran had a pre-existing strabismus condition, the presumption of soundness is not rebutted and the Veteran is presumed to have been in sound condition as to any knee condition on entrance.  Therefore, the Board will consider the Veteran's claim as one of direct incurrence, rather than one based on aggravation of a pre-existing condition.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  As such, since strabismus was diagnosed in the treatment records, the Veteran has proved an in-service event, disease, or injury.

The remaining question before the Board is whether the Veteran's current disability, diplopia, resulted from the strabismus diagnosed in service and/or the surgery performed to treat the condition.

The Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses.  38 C.F.R. � 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses).  Further, the Veteran's statements and testimony are admissible and are to be considered as evidence that the symptoms continued from separation to the present.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible).  The Board thus finds that the Veteran is competent to describe his symptoms in service and thereafter.

Furthermore, the Board finds the Veteran is not only competent to describe he symptoms, but he is also competent to state he has double vision or diplopia.  Stated another way, diplopia is capable of lay observation.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  In this instance, diplopia is a simple medical condition that the Veteran can identify as it is similar to other conditions that have been determined to be simple medical conditions that can be identified by a layman, such as, flat feet, certain skin conditions, tinnitus, and varicose veins.  Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition); See also, Jandreau; Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995).

The Board also finds the Veteran's statements and testimony are credible.  His statements and testimony tend to prove a fact, that is, he noticed that diplopia began in service.  The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an injury, disease, or event here the diagnosis of strabismus followed by two attempted surgical repairs, resulting in diplopia.  Moreover, the Board finds the Veteran's report of having experienced diplopia since separation from service to be credible as there is no contradictory evidence in the record.  As the Veteran's lay statements are competent to describe the onset in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and service on the basis of continued symptoms, all the elements of service connection have been met and service connection is established.  See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence).

Therefore, the evidence also proves a relationship between service and the current diplopia, that is, the statements and testimony establishes the in-service incurrence of an injury, disease, or event (surgical repair for strabismus) that resulted in the Veteran's current double vision or diplopia.  Accordingly, the Board finds the diplopia began in service and the claim for service connection for strabismus, status-post surgical repair, including diplopia, must be granted.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

ORDER

Entitlement to service connection for strabismus, status-post surgical repair, including diplopia, is granted.

____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: K J ALIBRANDO

condition: headache

text:
Citation Nr: 1401000
Decision Date: 01/09/14    Archive Date: 01/23/14

DOCKET NO.  12-14 719	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a migraine disability.

REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans Affairs

ATTORNEY FOR THE BOARD

R. Casadei, Associate Counsel

INTRODUCTION

The Veteran had active service from June 1985 to January 1992.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by which the RO denied entitlement to the benefit sought herein.

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.

FINDINGS OF FACT

1.  A migraine disorder was not "noted" at service entrance and the evidence does not show, clearly and unmistakably, that a migraine disability preexisted service.

2.  The Veteran was treated for recurrent symptoms of migraines in service.

3.  The Veteran had recurrent symptoms of migraines after service separation.

4.  Currently diagnosed migraines are related to service.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, a migraine disorder was incurred in service.  38 U.S.C.A. �� 1110, 1131, 1111, 5103, 5103A, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.326(a) (2012).  The claim of service connection for a migraine disorder has been considered with respect to VA's duties to notify and assist.  Given the favorable outcome of this decision, no conceivable prejudice to the Veteran could result from this decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A.
�� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection may 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 C.F.R. � 3.303(d).  A migraine disorder (organic disease of the nervous system), is considered a "chronic disease" listed under 38 C.F.R. � 3.309(a) (2013); therefore, the presumptive service connection provision of 38 C.F.R. � 3.303(b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  With chronic disease as such in service, "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes."
38 C.F.R. � 3.303(b).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In rendering a (merits) decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186   (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

Service Connection for a Migraine Disorder

The Veteran contends that she was sound at service entrance, and that she incurred a migraine disorder during service.

The Board finds that a migraine disability was not "noted" at service entrance.  A June 1985 enlistment examination shows that a neurological and head examination were normal at entrance.  On her Report of Medical History completed when she entered service, the Veteran checked that she had frequent headaches.  She specifically noted that she had "headaches due to tension."  In a later statement dated May 2012, the Veteran specifically described the difference, according to her own symptoms, between tension headaches and migraines.  Accordingly, the Board finds that the evidence does not show, by clear and unmistakable evidence, that a migraine disorder preexisted service entrance.  As such, the presumption of soundness, with regard to a migraine disability, at service entrance attached.  See
38 U.S.C.A. � 1111.

After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the evidence in support of the claim for service connection for a migraine disability is in equipoise.  The Board finds that the evidence shows that the Veteran was seen several times for headaches and migraines during service.  In September 1987, the Veteran was seen for complaints of headaches.  In September 1990, she was diagnosed with probably complicated migraines, exacerbated by pregnancy, and in October 1990, she was again treated for a migraine.

Post-service VA treatment records demonstrate continued treatment for migraines since January 2002, to include a diagnosis of a migraine disorder on the August 2010 VA examination report.

In a May 2012 statement, the Veteran also reported that during service she experienced migraines like she had never experienced before.  Symptoms included pain, nausea, and small bird-like auras outside her peripheral vision.  The Veteran specifically stated that her migraine symptoms were different than those of a headache.  She maintains that she has continued to suffer from migraines since service separation.  The Veteran is competent to provide evidence about observable symptoms, including head pain, nausea, and disruption of vision, as it is personal knowledge that comes through the use of her senses.  See Charles v. Principi, 16 Vet. App. 370 (2002); Jandreau v. Nicholson, 492 F.3d 1377 (Fed. Cir. 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition").

The Board also notes that the Veteran was afforded a VA examination in August 2010 to assist in determining the etiology of her migraine disorder.  As the examiner inaccurately assumed that the migraine disorder preexisted service entrance, his opinion (that a migraine disability was not aggravated by service) is of no probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinions or diagnoses based on inaccurate material facts are of no probative value).

For these reasons, the Board finds that there is competent evidence of a relationship between the Veteran's currently diagnosed migraine disorder and active service.  The Veteran suffered symptoms of migraines in service and has suffered those same symptoms since service separation.  See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (finding that lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease).

For these reasons, the Board finds that the weight of the competent and credible evidence is at least in relative equipoise on the question of whether the Veteran's migraine disability was incurred in service.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a migraine disability is warranted.

ORDER

Service connection for a migraine disability is granted.

____________________________________________
K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: WAYNE M BRAEUER

disposition: denied

benefit: reduction

condition: knee

text:
Citation Nr: 1403000
Decision Date: 01/24/14    Archive Date: 01/31/14

DOCKET NO.  10-23 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania

THE ISSUES

1. Propriety of the reduction in disability rating for right knee degenerative joint disease from 20 percent to 10 percent, effective July 1, 2009.

2. Propriety of the reduction in disability rating for internal derangement, right knee from 20 percent to 10 percent, effective July 1, 2009.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

A. Ruda, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1993 to October 1994.

This matter is on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

FINDINGS OF FACT

1. In a June 2004 rating decision, the RO increased the Veteran's disability rating for internal derangement of right knee from 10 percent disabling to 20 percent disabling effective March 22, 2004.

2. In April 2005, the RO granted service connection for degenerative joint disease, right knee, and assigned a disability rating of 10 percent, effective March 22, 2004.

3. In July 2008 based on objective findings obtained from a June 2008 VA examination, the RO proposed to reduce the Veteran's rating for internal derangement of right knee from 20 percent disabling to 0 percent disabling.

4. In July 2008 based on objective findings obtained from a June 2008 VA examination, the RO proposed to reduce the Veteran's rating for degenerative joint disease, right knee from 20 percent disabling to 10 percent disabling.

5. In a March 2009 rating decision, the Veteran's disability ratings for both degenerative joint disease, right knee and internal derangement of right knee were reduced from 20 percent disabling to 10 percent disabling, effective July 1, 2009.

6. The reductions were carried out in accordance with applicable procedures.

7. The Veteran's 20 percent disability ratings for both degenerative joint disease, right knee and internal derangement of right knee had been in effect for a period greater than 5 years.

8. At the time of the March 2009 rating decision, the medical evidence reflected material improvement in both the Veteran's right knee degenerative joint disease and internal derangement of right knee under the ordinary conditions of his life.

9. For the relevant period on appeal, the Veteran's right knee disabilities were characterized, at worse, by limitation of extension to 10 degrees and limitation of flexion to 90 degrees and ankylosis of the knee was not shown.

10. For the relevant period on appeal, the Veteran's right knee instability more nearly approximated slight instability.

CONCLUSIONS OF LAW

1. The rating reduction from 20 percent to 10 percent for right knee degenerative joint disease, effective July 1, 2009, was proper.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5010, 5260, 5261 (2013).

2. The rating reduction from 20 percent to 10 percent for right knee internal derangement, effective July 1, 2009, was proper.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257, 5258, 5259, 5261 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA Duty to Notify and 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, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

In this case, however, the reduction in the Veteran's disability ratings was not prompted by a claim submitted by the Veteran.  Rather, the action was undertaken as a result of a review of medical records and a VA medical examination.  After reviewing the medical evidence, the RO thereafter followed the procedures outlined in 38 C.F.R. � 3.105(e), which included notice requirements specifically relating to reductions of compensation awards, as will be discussed in greater detail below. Consequently, the notice requirements of the VCAA do not apply.

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159 (2013).

After a careful review of the file, 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).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records.  Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim.
Additionally, VA examinations with respect to the issue on appeal were obtained in June 2008, February 2009 and May 2013.  38 C.F.R. � 3.159(c) (4).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. �3.159(c) (4).

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Reductions in Rating

Generally, 38 C.F.R. � 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines.  First, there must be a rating action proposing the reduction, and the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing.  If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction.  38 C.F.R. � 3.105(e), (i)(2).  The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires.  38 C.F.R. � 3.105(e), (i)(2)(i).

The Board concludes that VA has complied with the notification and due process requirements applicable to the reduction of a disability evaluation.  Specifically, as an attachment to an August 2008 VA letter, a July 2008 rating decision informed the Veteran of the proposed reductions, the evidence, and the reasons and bases for the proposed reductions.  The August 2008 letter to the Veteran informed him of his right to submit additional evidence or argument and to present such evidence or argument at a personal hearing, pursuant to 38 C.F.R. � 3.105(e), (i).  The reductions, following more than 60-day period to allow evidence to be submitted, were adjudicated in a March 2009 rating decision, which is the subject of this appeal.  In the March 2009 rating decision and via an April 2009 letter, the RO informed the Veteran that the reductions would take effect July 1, 2009.

As discussed above, the Board notes that the Veteran's VA treatment and private treatment records have been obtained.  The Veteran has been provided adequate VA examinations.  Further, neither the Veteran nor his representative has indicated that there is any additional evidence that should be obtained to substantiate the claims.

The Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Accordingly, the Board will address the merits of the claims herein.

In this case, the Veteran has been service-connected for a right knee disability since March 1998.  At that time, a 10 percent disability rating was assigned under 38 C.F.R. � 4.71a, DC 5257 (addressing instability of the knee).  After he submitted a new claim seeking an increased rating in March 2004, the RO issued a rating decision in June 2004 that increased his previously assigned disability rating to 20 percent, and also granted a separate 20 percent rating in April 2005
based on degenerative joint disease, right knee under 38 C.F.R. � 4.71a, DCs 5010 5261 (limitation of motion).  Rating a knee in this manner is consistent with VA regulations, in that a claimant who has arthritis and instability of the knee may receive separate ratings under DCs 5003 and 5257 or 5258/5259.  See VAOPGCPREC 23-97; see also VAOPGCPREC 09-04.

It is noted at the outset that the 20 percent ratings had been in effect from March 22, 2004 to July 1, 2008, which is slightly over five years.  In cases where a rating has been in effect for more than 5 years, changes of medical findings or diagnosis must be addressed in a way as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  38 C.F.R. � 3.344(a) and (c).  It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.  Id.

By contrast, if the evidence indicates that the improvement is temporary or episodic in nature, it will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Id.  Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  Id.  Failure to observe C.F.R. � 3.344(a) will render the reduction per se improper.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Limitation of Motion

The Board first considers whether the reduction from 20 percent to 10 percent based on limitation of motion was proper.  In order to warrant a rating in excess of 10 percent for the Veteran's right knee based solely on limitation of motion, the evidence must show: Limitation of flexion (20 percent for 30 degrees and 30 percent for 15 degrees under DC 5260);  Limitation of extension (20 percent for 15 degrees and 30 percent for 20 degrees under DC 5261);  Any combination of limitation of flexion and limitation of extension (providing separate compensable ratings under DCs 5260 and 5261, respectively); or Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256). See 38 C.F.R. � 4.71a (2013).

Based on the evidence of record, the Board finds that the reduction of the rating for the Veteran's right knee based on limitation of motion was proper, as limitation of motion only to a 10 percent level has consistently been shown.  Specifically, at his VA examination in June 2008, the Veteran reported that his major problem was constant pain producing limited mobility and an abnormal gait.  The Veteran reported using a right knee brace.  Upon examination, range of motion was observed to be 0 to 140 degrees flexion with pain on range of motion starting at 90 degrees and 140 to 0 degrees extension with pain ending at 90 degrees.  While there was pain upon repetitive motion, there was no increased limitation of motion following such repetitions.

Moreover, at VA examination in February 2009, the Veteran again complained of chronic pain that had increased over the more recent years.  He wore a brace on the knee and reported using two canes.  Upon examination, his extension was observed to be limited to 10 degrees and his flexion was limited to 90 degrees.  While there was evidence of pain following repetitive motion, no additional limitation was noted.  Thus, while these examinations indicate that a 10 percent rating is warranted for the limitation of extension in the Veteran's right knee, there was insufficient limitation to warrant a rating greater than this.

During the most recent VA examination in May 2013 the Veteran complained of chronic pain that had increased since the last VA examination.  The veteran reported wearing a knee brace.  Upon examination, his extension was observed to be limited to 10 degrees and his flexion was limited to 90 degrees.  After repetitive testing, ROM was limited to 85 degrees flexion and 10 degrees extension.

In addition to the VA examinations, the Veteran has undergone outpatient treatment for his knee complaints.  However, there is no indication of any limitation of motion in the right knee.  To the contrary, a July 2009 private treatment records indicates a normal range of motion was observed.

A private medical opinion was also provided by the Veteran stating the Veteran had significant decreased range of motion with knee flexion between 10 and 15 degrees maximum and knee extension approximately 10 degrees along with lateral instability.  However, no medical records were included with the opinion.  A letter requesting the medical records or signed authorization to obtain the records was sent to the Veteran in February 2009.  No response was provided.  While the opinion states the Veteran's flexion was limited to 10-15 degrees, three VA examination reports indicate the Veteran's flexion was limited to 85 degrees at worse.

In evaluating the extent of the Veteran's disability in terms of range of motion, the Board has included consideration of the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  38 C.F.R. �� 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  In this case, while the Veteran complains of knee pain, it does not appear that his pain results in additional functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance).  Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings he currently receives.

The Board recognizes the Veteran's assertions that the limitation of motion in his knee has not improved, and concedes that he is competent to report the symptomatology he experienced as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, to the extent that the Board finds that his rating reduction was proper, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to his statements made in connection to his claim for VA benefits.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony).

Therefore, based on these clinical observations, the Board concludes that the limitation in range of motion in the Veteran's right knee is stable, and is best characterized as 10 percent disabling based on limitation of extension under DC 5261.  Therefore, the reduction in rating from 20 to 10 percent based on limitation of motion was proper.

Instability

Since the July 2008 rating decision, the Veteran consistently reported that his left knee gave out on him.  Further, the February 2009 VA examination notes instability and giving out as joint symptoms.  Clinical evaluation during the February 2009 VA examination demonstrated that the Veteran's right knee disabilities were productive of incoordination and instability; however, stability testing during the May 2013 examination demonstrated the anterior and posterior cruciate ligaments and the medial and collateral ligaments were within normal limits.  Moreover, the June 2008 VA examination indicated no instability.  Significantly, the evidence also demonstrated no subluxation.

The October 2008 private physician opinion does indicate instability, but no medical records or evidence are provided with the opinion and no indication of the level of instability is noted.

Further, the May 2013 VA examiner performed physical examination testing for instability and reviewed the private medical records, prior C&P examinations and the claims file.  Following this, the VA examiner reported that the current state of the Veteran's knee showed no instability.

Comparing this disability picture with the disability picture present at the time of the April 2005 rating decision, the Board finds that the Veteran's service-connected left knee instability underwent an actual improvement under the ordinary conditions of his life and work by a fair preponderance of the evidence.  The disability picture manifest at the time of the March 2009 rating decision more nearly approximated 'slight' recurrent subluxation or lateral instability based on the February 2009 VA examination report and October 2008 private physician statement. 38 C.F.R. �� 4.6, 4.7, 4.71a, Diagnostic Code 5257.  Where the applicable diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. �� 4.40 and 4.45, with respect to pain, do not apply.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  Inasmuch as Diagnostic Code 5257 is not based on limitation of motion, the provisions of 38 C.F.R. �� 4.40, 4.45, and 4.59 do not apply.  Consequently, the Board finds that the March 2009 reduction of the rating assigned to the Veteran's service-connected right knee instability from 20 percent to 10 percent was proper. 38 C.F.R. � 4.2; Brown, 5 Vet. App at 420.

ORDER

As the March 2009 reduction of the rating for the Veteran's right knee degenerative joint disease, from 20 to 10 percent, effective July 1, 2009 was proper, restoration of a higher schedular rating is denied.

As the March 2009 reduction of the rating for internal derangement, right knee from 20 to 10 percent, effective July 1, 2009 was proper, restoration of a higher schedular rating is denied.

____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: SHANE A DURKIN

text: This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).

text:
Citation Nr: 1404000
Decision Date: 01/29/14    Archive Date: 02/10/14

DOCKET NO.  13-32 812	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUE

Entitlement to an initial rating in excess of 10 percent for an anxiety disorder.

REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs

ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1966 to April 1970, with confirmed service in the Republic of Vietnam.

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.

REMAND

In August 2011, the Veteran was afforded a VA examination in response to his claim for service connection for psychiatric disability.  The examiner diagnosed anxiety disorder, not otherwise specified, and opined that the disorder was not severe enough to interfere with occupational and social functioning or to require continuous medication.

In an October 2013 VA Form 9, the Veteran asserted that the August 2011 VA examination report does not accurately reflect the severity of his psychiatric symptoms because he did not openly and honestly discuss the symptoms with the VA examiner.  In light of this contention and an April 2009 VA outpatient record which suggests that the Veteran's psychiatric impairment is significantly worse than that reflected in the August 2011 VA examination report, the Board has determined that the Veteran should be afforded another VA examination to determine the degree of severity of his service-connected psychiatric disability.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.

2.  Then, the Veteran should be afforded a VA examination to determine the current degree of severity of his service-connected psychiatric disability.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner.

The RO or the AMC should ensure that the examiner provides all information required for rating purposes.

3.  The RO or the AMC should also undertake any other development it determines to be warranted.

4.  Then, the RO or the AMC should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a Supplemental Statement of the Case and the requisite opportunity to respond before the case is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

_________________________________________________
Shane A. Durkin
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) (2013).