Citation Nr: 1303350 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-12 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include residuals of asbestos exposure and occupational hazard. 2. Entitlement to service connection for a bilateral hip disorder, claimed as secondary to service-connected left and right knee disorders. 3. Entitlement to service connection for a bilateral ankle disorder, claimed as secondary to service-connected left and right knee disorders. 4. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis and degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from September 1983 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina and a January 2011 rating action issued by the Appeals Management Center (AMC), in Washington, DC. In July 2010, the Board remanded the appeal for further development. In a January 2011 rating decision, the RO granted service connection for osteoarthritis and degenerative disc disease of the lumbar spine, assigning a 10 percent rating effective September 2, 2003. In July 2011, the Veteran's respiratory, hip, and ankle claims were remanded for additional development and adjudication. This having been completed, these matters are returned to the Board for further review. Following the issuance of the most recent supplemental statement of the case in April 2012, the Veteran submitted additional evidence in connection with his claims. This was followed by a waiver of initial RO consideration submitted by the Veteran's representative and will therefore be considered by the Board in evaluating the Veteran's claims. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issue of entitlement to an initial evaluation in excess of 10 percent for osteoarthritis and degenerative disc disease of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A respiratory condition, to include mild restrictive disease, has been shown to have had its onset as a result of active military service. 2. A bilateral hip disorder, to include degenerative arthritis and bursal type calcification at the right acetabulum superolaterally, has been shown to be secondary to the Veteran's service-connected knee disorders. 3. A bilateral ankle disorder, to include degenerative arthritis and posterior calcaneal enthesophyte, right ankle, and small bone island in the left calcaneus, has been shown to be secondary to the Veteran's service-connected knee disorders. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a respiratory disorder, to include mild restrictive disease, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for an award of service connection for a bilateral hip disorder, to include degenerative arthritis and bursal type calcification at the right acetabulum superolaterally, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for an award of service connection for a bilateral ankle disorder, to include degenerative arthritis and posterior calcaneal enthesophyte, right ankle, and small bone island in the left calcaneus, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, however, as the Board has decided that entitlement to service connection for the Veteran's claims is warranted, no further discussion of the Veterans Claims Assistance Act of 2000 and the implementing regulations is required. In this regard, the Board notes that, with respect to the Veteran's respiratory claim, the RO/AMC but did not issue a supplemental statement of the case (SSOC) prior to returning this matter to the Board. The Board finds, however, that there was substantial compliance with the July 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Again, as the claim in question is being allowed, the RO/AMC's failure to issue a SSOC is not prejudicial to the Veteran in this case. II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). An alternative method of establishing the nexus and current symptomatology is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); Hickson v. West, 12 Vet. App. 247 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The provisions concerning continuity of symptomatology do not relieve the requirement that there be some evidence of a nexus to service. For service connection to be established by continuity of symptomatology there must be competent medical or other evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for bilateral hip and ankle disabilities, as secondary to his service-connected knee disorders, and a respiratory condition, to include residuals of asbestos exposure and occupational hazard. In a July 2010 remand, the Board requested that the RO afford the Veteran a VA examination to determine the etiology of any current hip or ankle disorder. The examiner was asked to provide an opinion addressing whether it is at least as likely as not that any current hip or ankle disorder is related to the Veteran's period of active service, or is caused or aggravated by the service-connected knee disorders. The Veteran underwent a VA examination in August 2010. However, the examiner did not fully address the questions posed by the Board. In this regard, the examiner stated that the Veteran's bilateral hip pain and ankle disorder were not caused by or a result of his service-connected knee problems or military service but rather were due to his being 75 pounds overweight. The Board observed that this opinion did not adequately address the issue of aggravation. In this regard, the Board noted that the Veteran had asserted that he was overweight due to his service-connected knee disorders. The Veteran was also afforded a VA examination to determine the etiology of any lung disorder. This was conducted in August 2010. The examiner, provided a diagnosis of mild restrictive disease with mild decrease in diffusing of unknown etiology, and stated that there was no evidence of asbestosis. Although the examiner indicated that the Veteran did not have a lung disorder due to in-service asbestos exposure, no opinion was provided with respect to whether he had a lung disorder due to any other in-service environmental hazard, as requested in the Board's remand. Addendum opinions were issued in connection with his claims in July 2011 and February 2012. The Veteran also submitted an orthopedic consultation report in connection with his hip and ankle claims dated in October 2011. The July 2011 addendum was in connection with the Veteran's hip and ankle claims. The examiner stated that the "[a]ll of the following issues (bursa type calcification at the R acetabulum, R posterior calcaneal enthesophyte, and small bone island in the L calcaneus) are incidental findings on x-ray. Bone islands are painless and are probably congenital in origin. The R posterior calcaneal enthesophyte is a calcification in the tendon insertion of the R Achilles tendon and related to the stress placed on that area by the patient's body weight. The bursa type calcification at the R acetabulum i[m]plies a bursa calcification from a remote bursitis. In my opinion it is the radiologist'[s] imagination as I do not see it on the x-ray. Regardless, the joint space in the R hip is normal which is what should be affected by weight shifting and altered body mechanics." After the addendum opinion was received, the Veteran submitted an October 2011 orthopedic evaluation of his hips and ankles. A brief recitation of the Veteran's medical history, including his long history of knee problems and surgeries, was noted. The Veteran also reported that he had pain in both hips, right more than left, and indicated that he had had problems with his hip and ankles for a very long time. The Veteran was examined and x-rays reviewed in connection with the report. Afterwards, the physician found that the Veteran had an early onset of severe degenerative changes in the knees that required multiple surgeries and total knee arthroplasties. The Veteran was noted to have been limping for over 20 years and that this had contributed to his hip and ankle pain. He was found to have degenerative arthritis in the hips and to a lesser extent in the ankles. The physician then opined that the service-connected knees contributed to the degenerative changes in the Veteran's hips and ankles. With respect to the Veteran's respiratory claim, an addendum was issued in February 2012. The examiner stated that the Veteran was in Southwest Asia during service and that there were environmental hazards as stated in the VA literature. It was also noted that the Veteran had a very low DLCO, which measures diffusion of gasses into the capillaries in the lung. The Veteran was noted to have been a smoker, but that he presently had no evidence of chronic obstructive pulmonary disease. The examiner stated that many different lung diseases could reduce the diffusion capacity (low DLCO) of the lungs. He stated that the Veteran had only two noxious exposures that could have caused his low diffusion capacity - smoking and exposure to environmental hazards. He was noted to have no clinical evidence of chronic obstructive pulmonary disease and so, the examiner found that the Veteran's current lung condition (to include mild restrictive disease) was at least as likely as not (50/50 probability) caused by or a result of exposure to environmental hazards while in the service. Based on the foregoing, and resolving the benefit of the doubt in the Veteran's favor, the Board finds that entitlement to service connection for a respiratory condition, to include mild restrictive disease, and for bilateral hip and ankle disabilities is warranted. In this case, the August 2010 VA examiner, as supplemented in the February 2012 addendum opinion, found that the Veteran's respiratory condition was likely the result of environmental hazards that he encountered in service. In addition, while the August 2010 examiner (as supplement in the July 2011 addendum), found that the Veteran's hip and ankle disabilities were not caused or aggravated by his service-connected knee disabilities, a subsequent October 2011 orthopedic report reached the opposite conclusion. Both opinions cited the Veteran's medical history and medical evidence in support of their opinions. As such, the Board finds that the evidence on the point is in relative equipoise, warranting the application of the benefit of the doubt in favor of the Veteran. In reaching the above conclusions, the Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In summary, the Board concludes that the weight of the evidence is in favor of the Veteran's respiratory claim and is at least in equipoise with respect to his hip and ankle claims. As such, a finding in favor of service connection in this case is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a respiratory condition, to include mild restrictive disease, is granted. Service connection for a bilateral hip disorder, to include degenerative arthritis and bursal type calcification at the right acetabulum superolaterally, is granted. Service connection for a bilateral ankle disorder, to include degenerative arthritis and posterior calcaneal enthesophyte, right ankle, and small bone island in the left calcaneus, is granted. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this regard, a January 2011 rating decision granted service connection for osteoarthritis and degenerative disc disease of the lumbar spine, assigning a 10 percent rating effective September 2, 2003. In a statement received at the RO in July 2011, the Veteran indicated that he did not understand why he was evaluated at only 10 percent for his low back disability and submitted reasons why he thought the evaluation ought to be higher. The Board accepts this statement as a notice of disagreement with the initial evaluation assigned. The RO, however, has not issued to the Veteran a statement of the case with respect to this issue. Inasmuch as the RO has not furnished the appellant a statement of the case that addresses the issue, a remand is warranted. 38 C.F.R. § 20.201, 20.300-301; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Accordingly, the case is REMANDED for the following action: The RO should furnish the Veteran a statement of the case regarding the issues of entitlement to a higher initial evaluation for osteoarthritis and degenerative disc disease of the lumbar spine, to include notification of the need, and the appropriate time period, in which to file a substantive appeal to perfect the issue, in accordance with 38 C.F.R. § 19.30. 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 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. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs