Citation Nr: 0214540 Decision Date: 10/17/02 Archive Date: 10/29/02 DOCKET NO. 00-12 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for the residuals of asbestos exposure. 2. Entitlement to service connection for the residuals of chemical exposure. 3. Entitlement to an initial compensable evaluation for degenerative joint disease of the right knee. ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION A DD 214 reflects that the veteran had active service from January 1988 to July 1999 with 8 years, 5 months, and 29 days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Chicago, Illinois, regional office (RO) of the Department of Veterans Affairs (VA). It was previously before the Board in April 2001, but was remanded for additional development. The requested development has been completed, and the matter has been returned to the Board for further consideration. FINDINGS OF FACT 1. The service medical records show that the veteran was exposed to chemicals such as Otto type torpedo fuel during active service. 2. The service medical records and the post service medical records are negative for a disability as a residual of exposure to chemicals, including torpedo fuel. 3. The service medical records show that the veteran was exposed to asbestos during active service. 4. The service medical records and the post service medical records are negative for a disability as a residual of exposure to asbestos. 5. The flexion of the veteran's right knee is limited to 120 degrees, without evidence of limitation of extension, or objective evidence of pain, weakness, incoordination, or excess fatigability on examination. CONCLUSIONS OF LAW 1. A disability was not incurred as a residual of chemical exposure during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001). 2. A disability was not incurred as a residual of asbestos exposure during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001). 3. The criteria for a 10 percent evaluation for a right knee disability have been met; the criteria for an evaluation in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5260, 5261 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to compensation for exposure to asbestos and chemicals during active service. He notes that he was exposed to asbestos while ripping out old fixtures on ships. He further notes that he was exposed to Otto fuel for torpedoes, which he says caused headaches. Finally, the veteran contends that the zero percent evaluation currently assigned to his service connected right knee is insufficient to reflect its current level of severity. He notes that he is in receipt of a 10 percent evaluation for his service connected left knee disability, and he believes his right knee disability is just as disabling as his left. VA has a duty to notify the veteran and his representative of any information and evidence needed to substantiate and complete a claim. VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate a claim. Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-2098 (2000) (to be codified as amended at 38 U.S.C. § 5102 and 5103 (West 1991 & Supp. 2001); 66 Fed. Reg. 45630-32 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159). The Board finds that these duties have both been met. An April 1999 letter from the RO to the veteran informed him of certain evidence he should submit in support of his decision, and that he would be scheduled for examination. He received timely notice of the decision on appeal, and he has been provided with a Statement of the Case and Supplemental Statements of the Case that contain the laws and regulations concerning his claim, the rating code governing the evaluation of his disability, and an explanation of the reasons and bases for the denial of his claim, which also indicated what evidence was needed to prevail. In addition, VA has afforded him medical examinations and obtained medical opinions in conjunction with his claim. Following the April 2001 remand, the RO mailed the veteran a letter in April 2001 that notified him of the provisions of the VCAA, the type of evidence required to prevail in his claims, what evidence he should submit, and what evidence would be obtained by VA. He was also requested to identify all sources of treatment for his disabilities. The Board must conclude that the duties to notify and assist have been completed, and that the veteran was made aware of what evidence he should provide, and what evidence would be obtained by VA. Therefore, the Board finds that a remand would serve no useful purpose for this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Any "error" to the veteran resulting from this decision does not affect the merits of his claim or substantive rights, for the reasons discussed above, and is therefore, harmless. See 38 C.F.R. § 20.1102 (2001). Pertinent law states that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A review of the service medical records shows that the veteran reported a history of exposure to asbestos in the course of his duties. He was followed by the Navy Asbestos Medical Surveillance Program. A March 1989 Occupation Health and Preventive Medicine Department questionnaire shows that the veteran answered "no" when asked if he experienced headaches. A March 1996 physical examination shows that the veteran had mild inspiratory wheezes, and mild rhonchi on examination of the lungs. These were not considered disabling, and the etiology of these findings was not noted. A Report of Medical History obtained at this time as negative for respiratory problems or headaches. All remaining physical examinations and medical histories obtained during the veteran's lengthy service are negative for headaches, respiratory findings or complaints, or any medical opinion that related a disability to the veteran's exposure to asbestos or chemicals. The veteran reported a history of exposure to Otto Fuel II and asbestos at the April 1999 retirement examination. The physical examination was negative for pertinent findings, including findings relating to the lungs, and was considered normal. The veteran was afforded a VA general medical examination in April 1999. He reported a history of exposure to Otto fuel when working with torpedoes. The veteran said that he would have headaches after being exposed to the fumes, and would have to leave and drink black coffee for relief. He reported that he did not develop any permanent after-effects as a result of this exposure. The examination did not note whether or not the veteran currently experienced headaches. The diagnoses included headaches, secondary to exposure to fumes of Otto fuel or torpedo fuel. The veteran was also afforded a VA respiratory examination in April 1999. He had a history of asbestos exposure for two or three months. The veteran denied shortness of breath, cough, dyspnea on exertion, or chest pains. On examination, the lungs were clear. After respiratory tests were conducted, the assessment was exposure to asbestos with no evidence of plaque and no restrictive pattern on the pulmonary function tests. The veteran had normal pulmonary function tests and a normal X-ray study. The examiner stated that the veteran had normal lung pathology at the present time. The veteran underwent an additional VA general medical examination in July 2001. His history of exposure to torpedo fuel was noted and discussed. Currently, the veteran reported experiencing a headache about once every three months or less. This was a dull frontal headache with no radiation of the pain, no nausea, and no vomiting. He experienced these mostly in the evening. The veteran had relief with an over the counter medication. Following the examination, the impression was vascular headache. The examiner stated that every time the veteran was exposed to torpedo Otto fuel he started having headaches, which were relieved by drinking black coffee. He experienced a headache every day that he was exposed to this fuel for three months. Currently, he experienced a headache every three months or less. An addendum stated that the impression was vascular headaches, most likely not related to fuel exposure, as the exposure ended over two years ago. An August 2001 Report of Contact shows that the RO contacted a representative of the Gunnery School at the Great Lakes Naval Training Center in order to obtain information on the chemical composition of torpedo fuel. It was learned that it was well known by those who worked with torpedoes that the fuel could cause headaches, but that the effects only last as long as the individual was exposed to the fuel. There was no residual impairment, as the chemicals from the fuel were purged from the body within two weeks. The Board finds that entitlement to service connection for the residuals of asbestos exposure and chemical exposure is not warranted. The evidence clearly establishes that the veteran was exposed to both asbestos and torpedo fuel during service. However, the service medical records, including the April 1999 discharge examination, are negative for any disability that has been attributed to either asbestos exposure or chemical exposure. The post service medical evidence also fails to show that the veteran's exposure resulted in a disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). The Board is aware that the diagnosis of the April 1999 VA examination was of headaches, secondary to torpedo fuel exposure. However, the examination report itself states that the veteran said he did not experience any after-effects as a result of this exposure, and was negative for current headaches. The July 2001 VA examination included a more detailed discussion of the history of the veteran's exposure to torpedo fuel, and the examiner reached a diagnosis of vascular headaches, which were most likely not related to the fuel exposure. Therefore, given the negative findings in the April 1999 VA examination history and report, and the opinion of the July 2001 VA examination that the veteran's current headaches were unrelated to the fuel exposure, the Board must find that the veteran does not have a current disability as a result of chemical exposure from chemicals such as Otto or torpedo fuel, and service connection is not warranted. Similarly, the April 1999 VA respiratory examination, although it noted the history of asbestos exposure, was completely negative for a respiratory disability. As there is no evidence that the veteran currently has any disability as a result of his exposure to asbestos during service, entitlement to service connection is not demonstrated. Right Knee Evaluation The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board notes that these issues involve the veteran's dissatisfaction with the initial rating for his disabilities assigned following the grant of service connection. The United States Court of Appeals for Veterans Claims, formerly the Court of Veterans Appeals (Court) has found that there is a distinction between a veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the veteran disagrees with the initial rating, the entire evidentiary record from the time of the veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to service connection for degenerative joint disease of the left knee and the right knee was established in a January 2000 rating decision. A 10 percent evaluation was assigned to the left knee disability, and a zero percent evaluation was assigned for the right knee disability. The veteran submitted a notice of disagreement with the evaluation for the right knee, and the current appeal ensued. The veteran's right knee disability is evaluated according to the rating code for degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Limitation of extension of the knee to 45 degrees is evaluated as 50 percent disabling. Limitation of extension to 30 degrees receives a 40 percent evaluation. 20 degrees of extension is evaluated as 30 percent disabling. Limitation of extension to 15 degrees merits a 20 percent evaluation. Limitation of extension to 10 degrees is evaluated as 10 percent disabling. Limitation of extension to 5 degrees is evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Code 5261. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. Limitation of flexion to 30 degrees merits a 20 percent evaluation. Limitation of flexion to 45 degrees warrants a 10 percent evaluation. Limitation of flexion to 60 degrees is evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Code 5260. There are other factors which must be considered in addition to those contained in the applicable rating code. The Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. The veteran was afforded a VA examination of his joints in April 1999. He reported a history of pain in both knees from time to time, with swelling during heavy exercise. He also experienced occasional stiffness. His only treatment was nonprescription pain medication. He did not wear knee braces, and had not had aspirations or injections in the knees. The veteran reported problems with running and jogging, but not walking. When he was experiencing pain, walking upstairs increased the pain. On examination, there was no deformity, atrophy, swelling, or discoloration of either lower extremity. After performing six or seven squats, the veteran developed some discomfort in his left knee, and the exercise was discontinued without evidence of excess fatigability. Flexion of both knees was to 130 degrees without pain. There was no hyperextensability, lateral bending, forward slipping, or other abnormal knee joint motion, and no evidence of instability and weakness. There was no tenderness about the knees. X-ray studies of both knees were normal except for some tiny spur formations seen on the medial aspect of the right knee. The diagnoses included degenerative joint disease, minimal, both knees. The veteran was afforded an additional VA orthopedic examination in July 2001. His history of knee complaints was noted. On examination, the veteran walked easily. He was described as very muscular, with moderate obesity. Both knees flexed to 120 degrees. They did not flex further as a result of the massive muscle he had in his thighs. The knees had no effusion, no synovial thickening, and no crepitus with motion. The motions were without pain or weakness, and there was no tenderness over the knees. The ligaments in the knees were intact with negative Lachman and drawer signs, and the collateral ligaments were firm. Cartilage tests were negative. There was no evidence of lack of endurance or lack of coordination. An X-ray study of the knee revealed mild degenerative joint disease with minimal spurring, but no lack of joint space. The final diagnoses included knee stiffness and pain secondary to bilateral mild osteoarthritis that is aggravated by his weight. Restriction of jogging and extensive stair climbing was indicated, with no other significant functional disability. The examiner added that the veteran had no significant flare-ups regarding his knees, and that the symptoms were mild and chronic. In an August 2001 addendum, the examiner stated that his final diagnosis with knee stiffness was totally in error. The veteran had mild knee pain consistent with age and overweight status with mild osteoporosis. There was no relationship whatsoever between any knee symptoms and his prior military service. In a second September 2001 addendum, the examiner stated that the veteran did not have osteoporosis, but osteoarthritis. The reference to knee pains was to both knees. The examiner stated that there was no objective difference between the knees on examination. The Board finds that entitlement to a 10 percent evaluation for the veteran's right knee disability is merited. The normal range of motion for a knee is 140 degrees of flexion, and zero degrees of extension. 38 C.F.R. § 4.71a, Plate II. The April 1999 VA examination found that the veteran's right knee had 130 degrees of flexion, and the July 2001 VA examination noted 120 degrees of flexion. This limitation of motion is insufficient to receive a compensable evaluation under the rating codes for limitation of motion. See 38 C.F.R. § 4.71a, Codes 5260, 5261. However, 38 C.F.R. § 4.71a, Code 5003 states that when there is limitation of motion of a joint that is noncompensable under the appropriate rating codes, a 10 percent evaluation is for application for each major joint affected. The Board notes that the January 2000 rating decision which initially established entitlement to service connection for the veteran's knee disabilities assigned the left knee a 10 percent evaluation under this provision. The Board notes the opinion of the July 2001 examiner that there is no objective difference between the knees on examination, and finds that a 10 percent evaluation is also warranted for the right knee for limitation of motion under 38 C.F.R. § 4.71a, Code 5003. In reaching this decision, the Board notes that the July 2001 examiner attributed the limitation of motion of the both of the veteran's knees to his muscularity, but the benefit of the doubt has been resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). The Board has considered entitlement to an evaluation in excess of 10 percent for the veteran's right knee disability, but this is not demonstrated by the evidence. As noted above, the limitation of flexion of 120 to 130 degrees is insufficient to receive a compensable evaluation under the rating code for limitation of flexion of the knee, and there is no evidence of limitation of extension. Although the veteran reports pain in his right knee, there is no indication that this results in increased limitation of motion or other functional limitation. The examinations were negative for weakness, incoordination, and excess fatigability. Therefore, there is no basis for an evaluation in excess of 10 percent for the veteran's right knee disability. ORDER Entitlement to service connection for the residuals of asbestos exposure is denied. Entitlement to service connection for the residuals of chemical exposure is denied. Entitlement to a 10 percent evaluation for the veteran's right knee disability is granted, subject to the laws and regulations governing the award of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.