Citation NR: 9623518 Decision Date: 08/23/96 Archive Date: 08/30/96 DOCKET NO. 94-06 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for residuals of a resection of the first left rib. 2. Entitlement to service connection for post traumatic stress disorder (PTSD). 3. Entitlement to an increased (compensable) rating for residuals of a left knee injury. 4. Entitlement to a permanent and total disability rating for non-service-connected pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active honorable service from December 1974 to December 1978. He also served from December 1978 to February 1984, but the nature of this service constitutes a bar to VA benefits. This appeal comes to the Board of Veterans’ Appeals (Board) on appeal of rating decisions of the Wilmington, Delaware, Regional Office (RO) of the Department of Veterans Affairs (VA). Among the issues developed and certified for appellate review was service connection for a throat condition. In February 1991, the RO granted service connection for residuals of lymph node excision from the right anterior neck and parietal area; this is the “throat condition” for which the veteran was seeking service connection. The issue of service connection for a throat condition is therefore not before the Board. The issue of service connection for PTSD is addressed in the remand portion of the decision for reasons explained below, and the issue of entitlement to a permanent and total disability rating for non-service- connected pension purposes is deferred pending completion of the remand. CONTENTIONS OF APPELLANT ON APPEAL The veteran, in essence, contends that service connection is warranted for residuals of a rib removed during service and that a higher rating is warranted for his left knee disability because he has ongoing left knee problems. DECISION OF THE BOARD The Board, in accordance with 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for residuals of a resection of the first left rib lacks legal merit and that a preponderance of the evidence is against an increased rating for residuals of a left knee injury. FINDINGS OF FACT 1. The veteran underwent a resection of the left first rib in May 1980 during a period of active service for which he is not eligible for VA benefits. 2. The veteran’s left knee has a small well-healed scar, but no limitation of motion, instability or functional impairment. CONCLUSIONS OF LAW 1. Entitlement to service connection for a resection of the left first rib is not warranted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.12, 3.303 (1995). 2. The criteria for an increased rating for residuals of a left knee injury have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.118, Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active honorable service from December 1974 to December 1978. He also served from December 1978 to February 1984, when he was given a bad conduct discharge after a general court martial, conviction, and confinement. (In October 1986 the RO held the February 1984 discharge was under dishonorable conditions and the nature of the December 1978 to February 1984 service constituted a bar to all VA benefits.) In December 1978 the veteran was seen with a knee complaint (side not specified). He had full range of motion with no laxity. No other knee complaints were noted during service. Thoracic outlet syndrome was diagnosed in January 1980 and he underwent resection of the first left rib for the thoracic outlet syndrome in May 1980. In May 1988 the veteran filed a claim for service connection for knee (side not specified) injury. On a November 1988 VA examination, the veteran reported he had a bad left knee; no orthopedic findings were noted. On an October 1991 VA examination, the veteran reported his left knee hurt and “pops out”. The examination showed he had a small well-healed scar along the left patella. There was full range of motion and no swelling. There was a 2x3 cm. movable mass to the medial aspect of the patella. X-rays of the knee were negative; no diagnosis was proffered. On an April 1992 VA general medical examination, no injuries were noted. There was no atrophy tenderness or swelling of the muscles’ ligaments or joints. Range of motion of the lower extremities was full and unrestricted. Analysis Service Connection for Residuals of a Resection of the First Left Rib The veteran is also claiming service connection for residuals of a resection of the first left rib. This procedure occurred in May 1980 during a period of active service for which he is not eligible for VA benefits. A fundamental requirement for service connection is that the claimed disability be causally or temporally related to service in some way. See, e.g., 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303 (1995). The veteran was granted an other than honorable discharge in February 1984. An administrative decision of October 1986 determined that the discharge from the veteran’s service for the period from December 1974 to June 1978 was under conditions other than dishonorable, and that the discharge from service for the period June 1978 to February 1984 was under dishonorable conditions. The veteran is thus not eligible for compensation for disabilities based on incurrence during this latter period of service. 38 C.F.R. § 3.12(a) (1995). As the veteran bases his claim for service connection for residuals of a resection of the first left rib on his second period of service, the claim must be denied as a matter of law. See Sabonis v. Derwinski, 6 Vet.App. 426, 430 (1994). An Increased Rating for Residuals of a Left Knee Injury The veteran is seeking an increased rating for residuals of a left knee injury. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. A knee impairment, with recurrent subluxation or lateral instability, will be rated 10 percent when slight. 38 C.F.R. § 4.71a, Code 5257. When these requirements are not shown, a zero percent rating is assigned. 38 C.F.R. § 4.31. Under 38 C.F.R. § 4.40 functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior on motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45 factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis [and] actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.40 recognizes that functional loss may be caused by pain “on use” or limitation of motion and that functional loss by either should be compensated at the same rate. Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). Further, 38 C.F.R. §§ 4.40 and 4.45 together make clear that pain, supported by pathology and behavior, must be considered capable of producing compensable joint disability. Schafrath 592 (1991). The October 1991 and 1992 VA examinations both show full range of motion of the knees. These examinations and the entire record do not show recurrent subluxation or lateral instability. The veteran’s current non-compensable rating is based on the small asymptomatic left knee scar. There is no allegation or demonstration that the healed scar meets any criteria for a compensable rating. 38 C.F.R. § 4.118, Codes 7800-7805. Thus, there is no basis for a compensable evaluation for the right knee condition. The complaint, expressed on the October 1991 VA examination, that the knee hurt is not supported by adequate pathology to support consideration of a compensable rating. 38 C.F.R. §§ 4.40,4.59. Neither does the evidence show that the disability more closely approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim of entitlement to compensable evaluations for residuals of a left knee injury, the benefit-of-the-doubt doctrine does not apply to this issue and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of a resection of the first left rib is denied. An increased (compensable) rating for residuals of a left knee injury is denied. REMAND The veteran has presented a well-grounded claim of service connection for PTSD, and the VA has a duty to assist him in developing his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1995); Littke v. Derwinski, 1 Vet.App. 90 (1990). The veteran contends that he has PTSD as a result of having experienced traumatic events while serving as an aircraft maintenance man during service. The veteran did not serve in combat, but alleges stressful events during both periods of service. A longitudinal review of the record shows a rather inconsistent history of alleged stressors during service; nevertheless, PTSD has been diagnosed on several occasions. In May 1993 the RO submitted information concerning alleged stressors in service to the United States Army and Joint Services Environmental Support Group (ESG) and asked them to verify the alleged stressors. In August 1993 the ESG notified the RO that they could not verify the alleged stressors. More development is this regard is required. Accordingly, this case is REMANDED for the following actions: 1. The RO should again request from the ESG any information concerning an accidental death of an airman while on duty performing maintenance in June 1975 or April-May 1976 at George Air Force Base (AFB) in California. The unit was the 35th Field Maintenance Squadron. Suggested sources of information include injury and accidental death reports that may be maintained at the repository of records from George AFB, the appropriate Air Force headquarters command or the Headquarters, Department of the Air Force. Any leads should be pursued to their logical conclusion. 2. If the stressful event is confirmed and the record reflects the veteran was a witness to the accident, the file should be referred to a VA psychiatrist for review. He should be requested to give his opinion as to whether the veteran has PTSD and, if so, whether it is as likely as not that the PTSD is due to the stressor during the December 1974 to December 1978 service, as opposed to claimed stressors during the December 1978 to February 1984 service or subsequent events including post-service incarcerations. The doctor should give detailed reasons for any conclusions reached. If the claims remain denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Then the case should be returned to the Board. EUGENE A. O’NEILL Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1995). - 2 -