Citation Nr: 1007376 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-21 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for diabetic retinopathy as secondary to Type II diabetes mellitus. 3. Entitlement to service connection for hypertension as secondary to Type II diabetes mellitus. 4. Entitlement to an evaluation in excess of 10 percent disabling for residuals from fractured right lateral tibial plateau with rupture of collateral ligament, with excision of right medial meniscus, with degenerative joint disease (right knee disability). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Lynne M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to March 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction over this claim is now with the RO in Portland, Oregon. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam. 2. Type II diabetes mellitus did not have onset during the Veteran's active service, did not manifest within one year of separation from active service, and is not etiologically related to the Veteran's active service. 3. Service connection for type II diabetes mellitus has not been established. 4. The Veteran's right knee disability is manifested by a 19-ince medial healed keloid, some pain, and limited range of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus, diabetic retinopathy, and hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). 2. The criteria for an evaluation in excess of 10 percent disabling for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5259, 5260, and 5261 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2008). In general, service connection 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including diabetes mellitus and hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2009). Diabetes Mellitus Type II VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of diabetes mellitus during service. 38 C.F.R. § 3.309(e). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2009). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). This interpretation of "service in the Republic of Vietnam" has been upheld by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (cert. denied Haas v. Peake, 77 U.S.L.W. 3267 (U.S. January 21, 2009) (No. 08-525)). In Haas, the Federal Circuit held that "the agency's requirement that a claimant have been present within the land borders of Vietnam at some point in the course of his duty constitutes a permissible interpretation of the statute and its implementing regulation." Id. at 1172. Hence, the of presumption of service connection based on exposure to Agent Orange during service in the Republic of Vietnam applies only to those cases where the veteran was present within the land borders of the Republic of Vietnam between January 9, 1962 and May 7, 1975. In the instant case, the Veteran served with the U.S. Navy from February 1963 to March 1967. In his Substantive Appeal from June 2006, he stated that he served aboard the U.S.S. Berkeley (DDG-15), deployed to Vietnam and docked in Danang Harbor as they off-loaded and loaded cargo and to pick up a VIP. Of record is a response, dated in June 2009, from the U.S. Armed Services Center for Unit Records Research (CURR). This response indicates that neither the history nor the deck logs of the U.S.S. Berkeley revealed that the ship was in port in the Republic of Vietnam during the time the Veteran served aboard that ship, providing highly probative evidence against this claim. The Veteran's service personnel and treatment records do not indicate that the Veteran was within the borders of the Republic of Vietnam during his service. While the Board notes that the Veteran received the Armed Forces Expeditionary Medal for Vietnam area of operation for service aboard the U.S.S. Berkeley, this commendation is not indicative of "service in the Republic of Vietnam" as addressed Haas and is not sufficient to prove that the Veteran was within the borders of Vietnam. The Board finds that the Veteran's statements regarding this critical issue are outweighed in probative value by the records cited above. Because the Veteran did not have service in the Republic of Vietnam, service connection cannot be presumed based on exposure to herbicide agents during service in the Republic of Vietnam. A private laboratory report from Cerritos Medical Group revealed that the Veteran's earliest symptoms or diagnosis of diabetes mellitus was in January 1988. The Veteran has never contended, nor is there any evidence of record, that his diabetes mellitus manifested within one year of separation from active service. Therefore, service connection is not available based on the presumption for chronic diseases. As with any service connection claim, service connection could be established based on proof of actual causation of the Veteran's diabetes mellitus by an event, injury or disease during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, there is no evidence of record indicating that the Veteran suffered from diabetes mellitus during service or for many years after service. Nor is there any indication that the Veteran's diabetes mellitus is related to his service. Evidence of record first mentions diabetes mellitus or high glucose levels in January 1988. The records make no reference to the Veteran's service or to exposure to herbicide agents. The post-service medical record, as a whole, provides evidence against this claim, indicating a problem that began many years after service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). In summary, all evidence is against a finding that the Veteran's type II diabetes mellitus had onset during service or within one year of separation from service. There is no competent evidence of record that the Veteran's type II diabetes mellitus is related to his service, or any indication of a connection with service, to include exposure to an herbicide agent during service. Because the Veteran had no service in the Republic of Vietnam, but only in the waters outside the borders of the Republic of Vietnam, service connection cannot be presumed as due to exposure to an herbicide agent during service. Hence, the appeal must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Retinopathy and Hypertension Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2008). Similarly, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. In cases of aggravation of a veteran's nonservice-connected disability by a service- connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2008). To establish service connection for a disorder as secondary to a service-connected disability, there must be a service- connected disability. Because the Board is denying his appeal as to service connection for Type II diabetes mellitus, and there is no contention that this disability began in service or is connected with service other than by diabetes, there is no legal basis for granting the remaining service connection claims on appeal. Therefore, as a matter of law, the remaining claims must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Service connection was established for a right knee disability in a March 2004 rating decision and a zero percent evaluation was assigned. A rating decision from November 2008 increased the Veteran's right knee evaluation to 10 percent disabling. The Veteran's right knee disability is rated under Diagnostic Code 5259 for symptomatic removal of the semilunar cartilage. Under DC 5259, a 10 percent rating is assigned where there is evidence of removal of the semilunar cartilage, which is symptomatic. DC 5259 does not provide for a rating greater than 10 percent, but under DC 5258, a 20 percent rating is warranted where dislocated semilunar cartilage results in frequent episodes of "locking," pain, and effusion into the joint. Knee disabilities may also be rated based on limitation of motion. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. Id. The VA Office of General Counsel has also stated that DC 5259, removal of semilunar cartilage, may result in complications producing loss of motion. As such, limitation of motion is a relevant consideration under DC 5259. VAOPGCPREC 9-98 (Aug. 14, 1998). Since the filing of his claim, the Veteran was afforded VA examinations in October 2006 and, more recently, in June 2007. In October 2006, the examiner diagnosed the Veteran with degenerative joint disease (DJD) of the right knee, confirmed by X-ray. Although patellar crepitus and pain was noted, there was no medical indication in the evidence of record of frequent "locking" episodes. Upon further physical examination, the examiner found obvious bilateral gross anatomical deformity and arthritis, most notable of the medial tibial plateau. It is squared and protuberant on the right knee. The right patella is flattened and the quadriceps are rather deconditioned. There was a large, 19-inch medial healed keloid of the right medial knee that is unbound to underlying tissue and nontender. With respect to the Veteran's gait, the examiner noted that there was a slight varus deformity of the right knee with an eversion type of stance phase on the right foot and normal on the left. There was also a rotation and antalgic movement to the right leg causing a lurch of the hips. This was consistent throughout the entire four phases of the Veteran's gait bilaterally. The examiner found no edema, no signs of instability, no guarded movement, and no weakness. Range of motion testing indicated extension to 0 degrees and flexion to 130 degrees. No additional limitations were noted on repetition. The Veteran had weekly flare-ups when walking on uneven surfaces, attempting to perform any manual yard work of any kind. These activities led to fatigue, stiffness, and pain to both knees. In June 2007, the Veteran was again afforded a VA examination. The results from this examination were almost identical to those of the October 2006 VA examination. In contrast to the results during the October 2006 examination, the Veteran had no incapacitating episodes within the past 12 months. The only change from the last examination was that walking around campus creates more stiffness at the end of the day. In short, the Veteran's right knee disability is mainly manifested by residuals of a fractured right lateral tibial plateau with rupture of collateral ligament, with excision of right medial meniscus, with degenerative joint disease, and with complaints of pain and some limited motion. The Veteran's limited motion, however, does not reach a compensable level under DC 5260 or DC 5261. Accordingly, the Board does not find a higher rating under DC 5258 warranted. Rather, the Veteran's right knee disability is manifested by symptomatic residuals of a fractured right lateral tibial plateau to include some limitation of motion, painful motion, tenderness and altered gait. 10 percent is the highest rating available under DC 5259. The Board notes that the Veteran's functional loss was considered. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. The Veteran's 10 percent rating is primarily based on symptoms of pain, limited motion, and functional loss due to the Veteran's fracture residuals. Both the 2006 and 2007 VA examiners indicated the Veteran's altered gait due to both the Veteran's right and left knees. Both examiners found no additional limitations or functional loss on repetition of motion of the knee. The Veteran's right knee disability is mainly manifested by residual pain and limited motion from the Veteran's 1966 surgery. Thus, no increased rating due to functional loss is warranted for the right knee. As indicated above, there was X-ray evidence of degenerative joint disease in October 2005. DC 5003, for degenerative arthritis, does not provide for a rating greater than 10 percent for arthritis found in one major joint. See 38 C.F.R. § 4.71a, DC 5003. A separate disability rating for arthritis, moreover, is also not warranted. Again, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, however, the 10 percent rating assigned under DC 5259 is for "symptomatic" removal of semilunar cartilage. The Veteran's right knee is "symptomatic" because of his limited motion and pain. Accordingly, a separate rating for arthritis, which is predicated on painful motion, would constitute unlawful pyramiding. Id. The Board notes that there are other Diagnostic Codes relating to knee disorders, such as 5256 (ankylosis of the knee), 5257 (instability of the knee), 5262 (impairment of the tibia and fibula) and 5263 (for genu recurvatum). The Veteran himself does not complain of locking or instability of the knee and the objective evidence consistently indicated that the Veteran's knee ligaments are within normal limits. No examiner has observed instability, locking or grinding of the right knee. The medical evidence consistently indicates no objective evidence of ankylosis, instability, impairment of the tibia and fibula or genu recurvatum. These diagnostic codes, therefore, are inapplicable here. In short, the Board finds no provision in which the Veteran may be entitled to a higher or separate rating for his right knee disability. In summary, when considering the medical record and all applicable schedular criteria, there is no medical evidence which suggests that the Veteran's right knee disability warrants a disability rating in excess of 10 percent. The Board does not find evidence that the rating assigned for the Veteran's right knee disability should be increased for any other separate period based on the facts found during the entire appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. As such, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). The Board has considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) and determined referral for extraschedular consideration is not warranted in this case. Ratings have been assigned that contemplate the disability and symptomatology of each manifestation of the Veteran's disability resulting from residuals of a knee. There are no manifestations of the Veteran's right knee that have not been contemplated by the rating schedule and an adequate evaluation was assigned based on evidence showing the symptomatology and/or disability. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. Duties to Notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in October 2003 and June 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The October 2003 notice did not provide any information concerning the evaluations or the effective dates that could be assigned should service connection of claims numbered one through three be granted. See Dingess, supra. However, since this decision affirms the RO's denials of service connection, the Veteran is not prejudiced by the failure to provide him that further information. That is, as the Board finds that service connection is not warranted for the claims for service connection at issue on this appeal, no ratings or effective dates will be assigned and any questions as to such assignments are rendered moot. The Board is aware of the Court's clarification as to the requirements 38 U.S.C.A. § 5103(a) notice for increased rating claims. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court stated that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Court further stated that if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. Here, the Veteran is challenging the initial evaluation assigned for his right knee disability. There has been no "increased rating claim." Rather, there has been only one claim as to the Veteran's right knee disability, the original claim in which the Veteran sought to establish service connection and receive compensation for this disability. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). VCAA notice is triggered by receipt of the claim, or application, for benefits. 38 U.S.C.A. § 5103(a). In Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated: [S]ection 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). From this statement, it follows that the notice requirements triggered by VA's receipt of a claim to establish service connection, such as in the instant case, differs in content from notice in response to a claim seeking a higher evaluation for a disability for which service connection has already been established. In Wilson, the Federal Circuit specifically rejected the argument that section 5103(a) notice requirements were altered by the filing of a notice of disagreement. Id. at 1058-1059. Because the claim that gave rise to this appeal was a claim to establish service connection, and not a claim for an increased rating, the notice requirements explained by the Court in Vazquez-Flores do not apply. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs