Citation Nr: 1127587	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  08-03 254	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for bilateral flat feet.

3.  Entitlement to an increased, compensable evaluation for gastroesophageal reflux disease (GERD).

4.  Propriety of reduction of the evaluation of left knee medial meniscus tear with significant osteoarthritis from 20 percent to 10 percent, effective June 1, 2010.

5.  Propriety of reduction of the evaluation of right knee medial meniscus tear with significant osteoarthritis, status post arthroscopic debridement and partial meniscectomy, from 20 percent to 10 percent, effective June 1, 2010.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty with the United States Army from July 1984 to December 2004.  The Veteran received an other than honorable discharge (OTH) at the end of his service; service from July 1984 to January 30, 1999, is honorable for VA purposes.  The period from January 31, 1999, to December 2004 is OTH.

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2006, January 2010, and March 2010 rating decisions by various regional offices (ROs) of the United States Department of Veterans Affairs.  The Veteran has relocated several times over the course of processing his claims, and hence several ROs have held jurisdiction at various times.

Service connection for hypertension and bilateral flat feet were denied in the June 2006 decision.  The Veteran perfected his appeal of those denials with the filing of a January 2008 substantive appeal.  A hearing was held on those issues at the RO before the undersigned in March 2011; a transcript of the hearing is of record.

The January 2010 decision denied an increased, compensable evaluation for GERD and proposed reduction of the evaluations of the left and right knee disabilities from 20 percent to 10 percent.  The March 2010 decision implemented that proposal.  The Veteran filed a Notice of Disagreement (NOD) with those decisions in April 2010, placing the matters in appellate status and conferring jurisdiction to the Board.  38 C.F.R. §§ 19.26, 20.201.

The issues of entitlement to an increased, compensable evaluation for GERD and whether the reduction of his knee evaluations was proper 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.  The Veteran's service from January 31, 1999, to December 8, 2004, was under OTH conditions.

2.  Hypertension was first diagnosed during OTH service, in 2004.

3.  Bilateral flat feet were first manifested on active duty service, prior to January 1999.


CONCLUSIONS OF LAW

1.  The criteria for service connection of hypertension have not been met.  38 U.S.C.A. §§ 101, 1110, 1131, 5107, 5303 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.12, 3.102, 3.303 (2010).

2.  The criteria for service connection of bilateral flat feet have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).  September 2005 and September 2009 letters satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  A multipart notice suffices so long as the notice affords the claimant understandable information and a meaningful opportunity to participate in the claims process.  Mayfield v. Nicholson, 444 F.3d 1328 at 1333 (Fed. Cir. 2006). Further, the Veteran specified at his March 2011 hearing that he understood the elements of his claims and was waiving any error in the timing or content of the notice provided.

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  No VA examinations were provided with respect to the claims decided here; the evidence of record is either sufficient for adjudication of the claim, or the claim must be decided as a matter of law.  The Veteran was afforded a March 2011 hearing before the undersigned at the RO.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Service Connection

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

However, most VA benefits, including service connected compensation, are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable.  38 U.S.C.A. §§ 101(2), (18), 5303; 38 C.F.R. § 3.12. In other words, an OTH discharge is a bar to benefits for disabilities incurred during that period of service.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is 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.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

      Hypertension

A former service member who was discharged or released from service under dishonorable conditions may not receive payment of pension, compensation, or dependency and indemnity compensation benefits for any disability claim based on such "bad" period of service.  Regulations specify the conditions constituting a statutory bar to benefits, including discharge or release "by reason of the sentence of a general court martial."  38 C.F.R. § 3.12.

In a September 2005 administrative decision, VA determined that the Veteran's service from July 1984 to January 30, 1999, was honorable for VA purposes.  January 30, 1999, represented the termination date of a period of reenlistment; that was the date on which the Veteran could have separated after having completed his service commitment.  The period from January 31, 1999, onward, however, represented a new period of enlistment.  During that period, the Veteran was convicted of several sex offenses and sentenced to nine years confinement by a general court martial.  He was given a dishonorable discharge as a result.  Therefore, the period from January 31, 1999, to December 2004 was under OTH conditions, and the Veteran may not receive payment of compensation benefits based on that period of service.

The Veteran was notified of this decision in September 2005; he sought clarification of the reasoning behind the assigned terminal dates of the periods, but did not appeal the overall eligibility decision.  The determination became final in September 2006, and the Veteran has not sought to reopen the matter.

It is not disputed that the Veteran's hypertension was first manifested and diagnosed during his OTH service, or that this chronic disease remains active.  Service treatment records document that while imprisoned for his court martial offenses, the Veteran was prescribed the drug Vioxx for orthopedic (knee) pain.  His blood pressures then began increasing, and he experienced chest pain.  Both in-service and post-service doctors agree that the medication caused the hypertension.  In-service doctors noted in November 2004 that there had been a reduction in blood pressure when Vioxx was discontinued.  However, the Veteran's current treating physician, a VA doctor, indicated that the hypertension had not resolved completely as it should have, and current records document the use of hypertension medications.  The Veteran has also competently and credibly testified that he continues to be diagnosed with hypertension.

The Veteran argues that the statutory bar to compensation benefits does not apply to hypertension, as he is not claiming direct service connection.  Instead, he claims that the hypertension is secondary to the medication he took for his service connected left and right knee disabilities.  As the knee disabilities were incurred during his "good" service, the hypertension is related to that "good" period of service through them.

However, regardless of the mechanism which caused it, the hypertension arose during an OTH period of active duty service.  Direct service connection would be appropriate under that circumstance, and to ignore such and grant benefits on an alternative theory would be to gut the intent of the law and regulation.  VA is bound by the law and regulation, and hence entitlement to service connection for hypertension is barred.



      Bilateral Flat Feet

VA denied service connection for flat feet based on a finding that the condition pre-existed service and was not aggravated therein.  

However, the basis for the determination that flat feet were pre-existing is unclear.  The rating decisions cite unspecified service treatment records, but the November 1983 examination on enlistment notes normal feet.  The sole foot related finding involved a scar on top of the right foot.  A review of the service treatment records contained in the claims file does not reveal any medical opinion or finding indicating the flat feet existed before service.  In fact, a December 1992 treatment note refers to "falling" arches (emphasis added), indicating that the feet were in the process of flattening.

A Veteran is presumed sound on entry into service except for conditions noted on examination at the time of entry into service, or shown by clear and unmistakable evidence to have pre-existed service.  38 U.S.C.A. § 1132; 38 C.F.R. § 3.303(c).  As flat feet were not shown at the examination on entry the Veteran's feet must be presumed sound.

Service treatment records show the onset of flat feet during the Veteran's period of "good" active duty service, and current VA treatment records demonstrate the presence of a current chronic flat foot disability.  Subsequent manifestations of a chronic disease which is shown in service at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b). The Veteran competently and credibly describes continuous symptoms of foot problems since service, and these allegations are corroborated by treatment records.

Accordingly, service connection for bilateral flat feet is warranted.




ORDER

Service connection for hypertension is denied.

Service connection for bilateral flat feet is granted.


REMAND

The RO issued a rating decision denying an increased evaluation for GERD in January 2010.  In a March 2010 decision, the RO reduced the assigned 20 percent evaluations for his left and right knees to 10 percent apiece.  In April 2010, the Veteran, through his representative, filed a timely NOD with those decisions.  The claims file, which was transferred to the Board in April 2011, does not reflect that any action has been taken with respect to that NOD.

When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999). Thus a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal.  38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999).

Further, the claims file reflects that the Veteran continued to seek treatment for his knee disabilities following the proposal and implementation of the reduction in evaluation.  He in fact specified (prior to the expiration of the 60 day due process period under 38 C.F.R. § 3.105(e)) that he was going to see his doctor on March 23, 2010, with the express intent of gathering evidence relevant to the reduction.  He also requested an extension of time for the submission of stuff, and offered an explanation for the delay.  

The RO never responded to the request for an extension, and did not obtain any updated VA treatment records.  On remand, VA should address whether an extension of time to obtain the evidence was warranted or available, and should obtain all relevant evidence prior to addressing the procedural and factual propriety of the reductions.

Finally, the Code Sheet indicates the knee disabilities continue to be evaluated under Code 5258, for "cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint."  That Code provides only a 20 percent evaluation; the RO has nevertheless assigned 10 percent for each knee.  It appears a reversion to the prior Code, 5003, for arthritis, was intended, but this is not clear.  To facilitate appellate review, an explanation of the applied diagnostic code is required.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is required.)

1. Obtain updated VA treatment records from the VA medical center in Nashville, Tennessee, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record.

2.  Provide the Veteran an SOC which addresses the issues of 1) entitlement to an increased, compensable evaluation for GERD; 2) propriety of reduction of the evaluation of left knee medial meniscus tear with significant osteoarthritis from 20 percent to 10 percent, effective June 1, 2010, and; 3) propriety of reduction of the evaluation of right knee medial meniscus tear with significant osteoarthritis, status post arthroscopic debridement and partial meniscectomy, from 20 percent to 10 percent, effective June 1, 2010.

If any appeal is perfected by a timely filed substantive appeal, the issue should be certified to the Board.

The appellant 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. 2010).




______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs