Citation Nr: 1120942 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-47 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to traumatic arthritis of the right knee with chondromalacia. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for a disability characterized by numbness in the right foot. 4. Entitlement to an increased rating for traumatic arthritis of the right knee with chondromalacia and partial meniscectomy, currently evaluated as 10 percent disabling. 5. Entitlement to a total rating based on unemployability due to service-connected disability. 6. Entitlement to an effective date earlier than April 19, 2008 for the grant of a temporary total evaluation based on surgical or other treatment necessitating convalescence. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from October 1974 to February 1975. He had subsequent service in the Army National Guard, to include active duty from April 8, 1994 to April 24, 1994. He separated from the National Guard in January 1998 with 24 years of total service for pay. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that the Veteran failed to appear at a hearing before a Veterans Law Judge scheduled for June 7, 2010. Based thereon, his request for such hearing is considered withdrawn, and this matter is ready for further appellate review. The issues of entitlement to service connection for a back disability and a right foot disability, an increased rating for right knee disability, and a total rating based on unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Diabetes mellitus was not manifest in service or within one year of discharge; diabetes mellitus is unrelated to service. 2. The Veteran underwent arthroscopic surgery on his right knee on April 29, 2008; prior to that time, he was not hospitalized for his right knee disability and his right knee was not immobilized by a cast. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated during service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. The criteria for an effective date earlier than April 19, 2008 for the grant of a temporary total evaluation for convalescence following right knee surgery have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See 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). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in June 2008 discussed the evidence necessary to support a temporary total evaluation for convalescent care following treatment of the Veteran's service-connected right knee. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was advised of the development undertaken by VA. A July 2008 letter discussed the evidence necessary to support a claim for service connection. The Veteran was invited to submit or identify relevant evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence. He was advised of the manner in which VA determines disability ratings and effective dates. Except as discussed below, the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, identified records have been obtained and associated with the claims file to the extent possible. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. The Board acknowledges that the Veteran has not been afforded a VA medical examination regarding his claim of entitlement to service connection for diabetes mellitus. However, the Board finds that a VA examination is not necessary in order to decide this claim. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McClendon v. Nicholson, 20 Vet App. 79 (2006). In McClendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. The Veteran's service treatment records are devoid of any complaints or treatment showing diabetes mellitus. Further, the Board finds that there is otherwise no credible evidence of a continuity of symptoms since service, and no competent evidence otherwise showing that the claimed diabetes mellitus was incurred in service. For these reasons, a medical examination is not warranted. See 38 C.F.R. § 3.159(c)(4)(i). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Diabetes mellitus may be subject to service connection based on presumed incurrence in service if manifested to a compensable degree within one year subsequent to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of diabetes mellitus. On enlistment examination in April 1973 urinalysis was negative for sugar. On report of medical history in April 1981 the Veteran denied sugar in his urine. Urinalysis was negative for sugar. Such testing was also negative in December 1985, February 1991, and April 1995. Medical records subsequent to service are silent for a diagnosis of diabetes mellitus until June 2007, when a VA treatment record indicates that the Veteran was started on Metformin because of elevated blood sugar. A previous VA treatment record dated in May 2007 specifically indicates no diabetes mellitus on a review of systems. Having carefully reviewed the evidence pertaining to this claim, the Board finds that service connection is not warranted. While the evidence reveals that the Veteran currently has diabetes mellitus, the competent and probative evidence of record does not etiologically link this disability to service or any incident therein. Available service treatment records are silent regarding any clinical findings of diabetes mellitus in service, to include at various periodic examinations. Further, there is no lay or medical evidence of a continuity of symptomatology since service in the instant case. In this regard, the Board notes that a May 2007 VA record specifically states that diabetes mellitus was not present. Here, the first objective evidence showing diabetes mellitus dates to June 2007. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The Board acknowledges that the Veteran is competent to diagnose and report on simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board has considered the Veteran's assertion that diabetes mellitus is related to service. However, the more competent evidence consists of clinical records demonstrating that diabetes mellitus was not clinically diagnosed until 2007. For this reason, the Board concludes that the preponderance of the evidence is against finding that the claimed diabetes mellitus manifested in service or within one year of service, or is otherwise related to any incident of service. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and the claim of entitlement to service connection for diabetes mellitus is denied. Effective Date for Convalescent Rating The Veteran asserts that he should be assigned an effective date earlier than April 19, 2008 for the temporary total rate granted as the result of his knee surgery. In that regard, he has stated that February 10, 2007 is the date of the injury to his right knee which led to the April 2008 surgery. VA treatment records do show that the Veteran was seen with complaints referable to his right knee in February 2007. In June 2007 he was referred for physical therapy. The Veteran was seen on orthopedic consultation in December 2007. His history of injury and surgeries was reviewed. He reported that he reinjured his knee in February 2007. Records associated with the claims file indicate that the Veteran underwent arthroscopic surgery on his right knee on April 29, 2008. The Board observes that the RO has assigned an effective date of April 19, 2008 for the grant of a temporary total evaluation for convalescence. While the basis underlying the selection of that date is unclear, the Board finds that an effective date earlier than April 19, 2008 is not warranted. Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30. The record clearly demonstrates that while the Veteran underwent treatment prior to his April 2008 surgery, he was not hospitalized prior to the date of his surgery nor was his right knee immobilized by a cast. Accordingly, the criteria for an effective date earlier than April 19, 2008 for the grant of a temporary total evaluation for convalescence have not been met. ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to an effective date earlier than April 19, 2008 for the grant of a temporary total evaluation based on surgical or other treatment necessitating convalescence is denied. REMAND The Veteran seeks service connection for a back disability on a direct and secondary basis. As an initial matter, the Board observes that the Veteran has not been provided notice pursuant to the VCAA of the evidence necessary to establish service connection on a secondary basis. Such notice should be provided. Further, the Board observes that the Veteran has reportedly undergone back surgery and that his back disability has been the subject of a Workers' Compensation claim. Records concerning the back surgery and the Workers' Compensation claim should be sought. Regarding the Veteran's claimed right foot disability, the record contains a July 1996 report indicating that the Veteran lost feeling in his right foot while operating a tractor, while on yearly active training. A July 1996 Statement of Medical Examination and Duty Status indicates that the Veteran drove a tractor from Goodland, Kansas to Ft. Riley, Kansas and back in June 1996. He related that the extreme heat and vibration caused parts of his right foot to go numb and that feeling had not yet returned. The unit commander concluded that the injury was incurred in the line of duty. The Veteran maintains that he continues to have symptoms related to his right foot. With this in mind, the Board concludes that a VA examination is necessary to determine the presence of a current right foot disability and its etiology. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also seeks an increased rating for his service-connected right knee disability. He was afforded a VA examination in August 2008. The examiner stated that claims file was not available for review, but that the CPRS reports were available. The Board notes that the claims file contains a variety of private medical records, to include those pertaining to the Veteran's right knee surgeries and employment history. It is unclear whether the examiner's assessment would have changed in any material way based on a review of the records within the claims file. As such, the Board concludes that the August 2008 examination was insufficient absent a complete review of the Veteran's pertinent history. In that regard, the Board observes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Accordingly, the Board has determined that an additional examination of the Veteran's right knee disability is in order. Finally, the Board notes that further development and adjudication of the Veteran's claim may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board concludes that additional development of the record is required. Accordingly, the case is REMANDED for the following action: 1. Issue corrective VCAA notice which complies with the notification requirements of the VCAA, to include the evidentiary requirements as to establishing service connection on a secondary basis. The Veteran should be afforded an appropriate period in which to respond. The Veteran should be asked to provide additional information regarding his the reported workers' compensation claim related to a back injury, including the name and address of the employer, the approximate date of his injury and the approximate date of any medical examination(s) completed incident to that claim. Thereafter, take appropriate steps, if any, to secure any workers compensation or medical treatment records so identified and associate them with the Veteran's VA claims folder. Efforts to obtain these records should also be memorialized in the Veteran's VA claims folder. If the AOJ is unable to secure any identified records, it should contact the Veteran and notify him of the identity of the records it is unable to obtain, explain the efforts by VA to obtain such records, describe any further action VA will take regarding the claim, and notify the Veteran that he is ultimately responsible for providing the evidence. 2. Following completion of the above, schedule the Veteran for a VA examination to determine the extent and etiology of any currently present right foot disability and the current severity of his right knee disability. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. Right Foot Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all currently present disabilities of the right foot. With respect to any currently present disability of the right foot, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disability is related to any disease or injury in service. Right Knee The results of range of motion testing should be reported, and any excursion of motion accompanied by pain should be specifically identified. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability should be assessed in terms of additional degrees of limitation of motion. Stated differently, at what point does pain or any other factor limit motion. If instability of the right knee is assessed, the examiner should indicate whether it is mild, moderate, or severe. The examiner should provide an opinion regarding the impact of the Veteran's service-connected right knee disability on his employability. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 3. Following completion of the above, review the claims file and ensure that all necessary development has been completed. Should the expanded record indicate the necessity of additional VA examinations, such should be undertaken. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 is 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. 2010). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs