Citation Nr: 1228014 Decision Date: 08/14/12 Archive Date: 08/21/12 DOCKET NO. 02-08 577 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to service connection for claimed restless leg syndrome. 2. Entitlement to service connection for a claimed bilateral hip disorder, to include as secondary to service-connected disability. 3. Entitlement to service connection for claimed tinnitus. 4. Entitlement to service connection for claimed diabetes mellitus. 5. Entitlement to service connection for claimed varicose veins. 6. Entitlement to service connection for a claimed left ankle disorder. 7. Entitlement to a rating in excess of 10 percent for the service-connected right knee disability. 8. Entitlement to a rating in excess of 10 percent for the service-connected left knee disability. 9. Entitlement to a rating in excess of 10 percent for the service-connected residuals of chronic right ankle sprain. 10. Entitlement to a total rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to October 1985. This case initially came to the Board of Veterans Appeals (Board) on appeal from rating decisions dated in October 2001, July 2004, November 2006, December 2007 and June 2009. In the October 2001 rating decision, the RO denied service connection for a bilateral hip disorder and a low back condition. In July 2003, the Veteran testified at the RO by way of a videoconference hearing before the undersigned Veterans Law Judge; a transcript of this hearing is associated with the claims file. In a decision promulgated in November 2005, the Board denied the Veteran's claim of service connection for a bilateral hips disorder. The Veteran appealed the decision, and in June 2007, the United States Court of Appeals for Veterans Claims (Court) issued an Order that granted a Joint Motion for Remand by the parties; thereby, vacating the November 2005 decision and remanding the case back to the Board for additional consideration. The issue of service connection for a low back condition was remanded to the RO in November 2005. The RO has not issued a supplemental statement of the case pursuant to 38 C.F.R. § 19.31 for the issue of service connection for a low back disability and this issue has not yet been returned to the Board. In a November 2006 rating decision, the RO denied service connection for a left ankle disorder and entitlement to a TDIU rating. In November 2007, the Board remanded the claim of service connection for a bilateral hip disorder for additional development of the record. In a December 2007 rating decision, the RO denied the claims for higher ratings for the service-connected right knee, left knee and right ankle disabilities, the claim of service connection for restless leg syndrome, and the claim for a TDIU rating. In a June 2009 rating decision, the RO denied service connection for diabetes mellitus, varicose veins and tinnitus. In October 2011, the Board remanded the issues of service connection for varicose veins, diabetes mellitus, restless leg syndrome, a bilateral hip disability, and tinnitus; the claims for higher ratings for the service-connected left knee, right knee and right ankle disabilities; and the claim for a TDIU rating to the RO for additional development of the record. In February 2012, the Veteran testified at the RO by way of a videoconference hearing before the undersigned Veterans Law Judge; a transcript of this hearing is associated with the claims file. The issues of service connection for restless leg syndrome, a bilateral hip disorder, left ankle condition and tinnitus; the claims for higher ratings for the service-connected left knee, right knee, and right ankle disabilities; and claim for a TDIU rating are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated varicose veins is shown as likely as not to be due to the Veteran's period of active service. 2. The Veteran is not shown to have manifested complaints or findings of diabetes mellitus during service or for many years thereafter. 3. The currently demonstrated diabetes mellitus is not shown to be due to an event or incident of the Veteran's period of active service. 4. The Veteran is not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to have diabetes mellitus since service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by varicose veins is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). 2. The Veteran's disability manifested by diabetes mellitus is not due to disease or injury that was incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Duty to Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As the Board is granting the claim for service connection for varicose veins, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Regarding the claim for service connection for diabetes mellitus, the RO provided a VCAA notice letter to the Veteran in March 2009, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the March 2009 letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. The VA treatment records and private medical records are associated with the claims folder. There is no other relevant evidence that has been identified as being needed for review at this time. A VA examination was not conducted for this issue. However, such additional action is not warranted. In disability compensation claims, VA must provide a 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 VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that VA is not obligated to afford the Veteran a VA examination. There is no competent evidence of an event, injury or disease in service and there is no evidence associating the diabetes mellitus to any injury or event in service. Thus, there is no reasonable possibility that a VA examination would serve to substantiate the claim. Thus, the Board finds that a medical opinion or examination is not necessary. There is probative evidence establishing that the current diabetes mellitus manifested many years after service and there is sufficient competent medical evidence on file for the Board to make a decision on the claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the recent hearing, the Veterans Law Judge noted that basis of the prior determinations and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) were met and that the Board may adjudicate the claim based on the current record. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Pertinent Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. A continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first 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). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, if a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if diabetes mellitus became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis Service connection for varicose veins The Veteran's enlistment examination in December 1977 showed that his vascular system was normal. A March 1979 service treatment record indicated that there were several small varicosities along the tibial border and a large varicosity across the medial aspect of the knee. The assessment was that of varicose veins of the right leg. A March 1979 record from the surgery clinic noted moderate varicosities below both knees. The assessment was that of moderate varicosities. A May 1979 service treatment records shows a diagnosis of varicosities. A January 2011 VA examination noted that the Veteran had reported having varicose veins since 1978 that were due to military service. The Veteran stated that the varicose veins had worsened over time and caused pain, swelling, fatigue and numbness. An examination noted visible varicose veins. There was no evidence of deep vein thrombosis or thrombophlebitis. The varicose veins were palpable, superficial and tortuous. The diagnosis was that of bilateral lower extremity varicose veins. Based on a review of the record, the examiner opined that it was at least as likely as not that the varicose veins were related to the Veteran's active duty. In resolving all reasonable doubt in the Veteran's favor, service connection for varicose veins is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. Service Connection for diabetes mellitus The evidence establishes that the claimed diabetes mellitus type II was first shown to be clinically present in 2003, almost 18 years after service. Moreover, there is no medical evidence that tends to relate the onset of diabetes mellitus to an event or other incident of his active service. The enlistment examination in December 1977 enlistment examination report indicates that endocrine examination was normal. A May 1981 examination indicates that endocrine examination was normal. There were complaints or findings referable to diabetes mellitus in service. The post service treatment records show that Type II diabetes mellitus was first diagnosed in 2003. A July 2003 VA treatment record indicated that the Veteran had a new diagnosis of diabetes mellitus type II. Clearly, such a lengthy time interval between service and the earliest post service clinical documentation of the claimed diabetes mellitus is of itself a factor for consideration as being against a finding that the disability is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no competent evidence to establish a nexus between the claimed Type II diabetes mellitus and any documented event or incident of service. The Veteran's own statements that the diabetes mellitus is related to service are afforded little probative weight because he lacks the expertise to render opinions about such medical or scientific matters. Although the Veteran is competent to testify as to observable symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The Veteran is not found to have presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to diabetes mellitus beginning during service and continuing thereafter. Accordingly, on this record, the Board finds that the preponderance of the evidence is against the claim of service connection for diabetes mellitus type II. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for varicose veins is granted. Service connection for diabetes mellitus is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). See also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). The Board finds that a VA examination to obtain medical evidence as to current severity of the service-connected right knee, left knee and right ankle disabilities is needed in this case. At the hearing before the Board in February 2012, the Veteran testified that his knee and ankle disabilities had worsened. Her stated that, due to the instability in his right knee, he fell and was injured. He also reported having instability in the right ankle. Because of the evidence of possible worsening since the last examination, a new examination is needed to determine the severity of the service-connected right knee, left knee, and right ankle disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran asserts that he suffers from tinnitus that is due to noise exposure in service. At the hearing in February 2012, he testified that, in service, he was exposed to noise from artillery and mortars. The Veteran reported having ringing in the ears. The Veteran is competent to report observable symptoms and a continuity of symptomatology. Duenas v. Principi, 18 Vet. App. 512 (2004); Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds that an examination is needed to determine whether the Veteran currently has tinnitus that is due to the noise exposure in service. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the matters of service connection for restless leg syndrome, a bilateral hip disorder and a left ankle condition are closely related to the pending claim for service connection for a low back disability. As noted in the introduction, the claim for service connection for a low back disability was remanded to the RO in November 2005. The RO has not issued a Supplemental Statement of the Case pursuant to 38 C.F.R. § 19.31 to permit for consideration of the claim of service connection for a low back disability at this time. There is medical evidence suggesting that the claimed restless leg syndrome, bilateral hip disability and left ankle disability may be causally related to the low back disability. The February 2011 VA examination reported a diagnosis of lumbar intervertebral disc disease with degenerative arthritis changes and status post laminectomy with bilateral sciatic nerve involvement. Thus, further consideration of the claims of service connection for the restless leg syndrome, a bilateral hip disorder, and a left ankle condition must be deferred pending adjudication of the matter of service connection for a low back disability. The Board also notes that the matter of entitlement to a TDIU rating must be deferred pending resolution of the claims remaining on appeal. The RO should also contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain the pertinent VA and non-VA treatment records showing treatment of the service-connected right knee, left knee, and right ankle disabilities, and the claimed restless leg syndrome, hip disability, and left ankle disability. The RO should make an attempt to obtain any treatment records identified by the Veteran. Of record are VA treatment records dated to May 2010. The RO should obtain the VA treatment records from the VA Healthcare System showing treatment of the service-connected right knee, left knee, and right ankle disabilities and the claimed restless leg syndrome, hip disorder, and left ankle condition dated since May 2010. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask him to identify all VA and non-VA medical treatment rendered for the service-connected right knee, left knee and right ankle disabilities and the claimed restless leg syndrome, hip disorder and left ankle condition. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. The letter should notify the Veteran that he may submit medical evidence or treatment records to support his various claims. 2. The RO should take all indicated steps to obtain copies of all VA clinical records dated since May 2010 showing treatment of the service-connected right knee, left knee and right ankle disabilities and the claimed restless leg syndrome, hip disorder, and left ankle condition. 3. The RO then should schedule the Veteran for a VA examination to determine the current severity of the service-connected right knee, left knee and right ankle disabilities. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should report the range of motion in the right knee, left knee and right ankle in degrees. The examiner should determine whether the right knee, left knee, and right ankle disabilities are manifested by painful motion, weakened movement, excess fatigability, or incoordination. The examiner should report whether there is ankylosis of the right knee, left knee and right ankle. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any painful motion, weakened movement, excess fatigability, or incoordination. The examiner should report whether there is lateral subluxation or lateral instability of the right knee, left knee, and right ankle, and if present, express an opinion as to the severity of such subluxation or lateral instability (slight, moderate, or severe). An X-ray examination of the right knee, left knee, and right ankle should be performed. The examiner should report whether any functional impairment due to the right knee, left knee, and right ankle disabilities is severe, moderate or slight. If the examiner(s) are unable to provide the requested information with any degree of medical certainty, the examiner should indicate that. The examiner(s) should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 4. The RO also should schedule the Veteran for an examination to ascertain the nature and likely etiology of the claimed tinnitus. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the entire record, the examiner should render a medical opinion as to whether it is at least as likely as not (50 percent probability or more) that any current tinnitus is due to the harmful noise levels to which the Veteran reports being exposed in service or the result of another event or incident of his active service. If the examiner(s) are unable to provide the requested information with any degree of medical certainty, the examiner should indicate that. The examiner(s) should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 5. After completing all indicated development and accomplishing any other action deemed necessary as to claim of service connection for a low back condition, the RO should readjudicate the other claims remaining on appeal in light of all the evidence of record. If any benefits sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case to the Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 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. 2011). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs