Citation Nr: 1310432 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-39 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic obesity. 2. Entitlement to service connection for depressive disorder, to include as secondary to chronic obesity and bilateral Osgood Schlatter's disease. 3. Entitlement to an increased rating for Osgood Schlatter's disease with degenerative joint disease of the left knee, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for Osgood Schlatter's disease with degenerative arthritis of the right knee, currently evaluated as 20 percent disabling. 5. Entitlement to compensation under 38 C.F.R. § 4.29 for a service-connected disability requiring hospital treatment or observation. 6. Entitlement to compensation under 38 C.F.R. § 4.30 for convalescence purposes. 7. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from April 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Service connection for obesity was denied in an unappealed March 1998 rating decision. Since then, the Veteran has submitted copies of service personnel records that were not associated with the record at the time of the March 1998 rating decision. VA regulations provide that if relevant service records are associated with the claims file after VA first decided the claim, VA will reconsider the claim without regard to the provisions of 38 C.F.R. § 3.156(a) (2012), which provide for the standard for reopening previously denied claims. 38 C.F.R. § 3.156(c) (2012). Thus, as pertinent, newly submitted service records concerning the Veteran's weight in service have been associated with the claims file, reconsideration of the previously denied claim on a de novo basis is warranted. Consequently, the issue has been recharacterized on the title page as entitlement to service connection for chronic obesity. The Board observes that there is a Virtual VA e-file for the Veteran. This e-file was reviewed for new or relevant information; however, a review of the e-file revealed that it contained duplicative information that is already in the file or evidence that is otherwise not pertinent to the current claims. The Veteran testified before the undersigned Veterans Law Judge via videoconference in October 2011. A transcript of his hearing has been associated with the record. The Board observes that in a November 2009 statement, the Veteran asserted that he was entitled to an earlier effective date for the grant of service connection for Osgood Schlatter's disease. In addition, in a statement dated in August 2002, the Veteran again requested that the RO consider entitlement to service connection for stress headaches. As these matters have not been adjudicated by the agency of original jurisdiction (AOJ), they are referred for appropriate action. The issues of entitlement to service connection for depression, increased ratings for the bilateral Osgood Schlatter's disease, TDIU, and entitlement to total ratings pursuant to 38 C.F.R. § 4.29 and § 4.30, are addressed in the REMAND portion of the decision below, and are REMANDED to the RO. FINDING OF FACT Obesity is shown to have existed at service entrance, and it is not shown to have increased in severity during service. CONCLUSION OF LAW Obesity was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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. 2012); 38 C.F.R. § 3.159(b) (2012); 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. An October 2009 letter discussed the evidence necessary to support a claim for service connection. The Veteran was invited to submit or identify additional relevant evidence. The evidence of record was discussed. The Veteran was told that VA could help him obtain pertinent records. This letter also discussed the manner in which VA determines disability ratings and effective dates. 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 claim. With respect to VA's duty to assist, the Board notes that pertinent VA treatment records are also associated with the claims file. The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his obesity claim. In that regard, the Board finds that a VA examination is not necessary. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, 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. Here, the Veteran's service treatment records reflect that he left service weighing 35 pounds less than he weighed at entrance. As there is no indication that there was an increase in disability, the Board has concluded that a VA examination is not warranted with respect to this claim. Finally, the Board notes that the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above 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, the VLJ identified the issue on appeal and requested information concerning treatment. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 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 for Obesity 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 also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When a preexisting disease or injury is noted on the entrance examination report, 38 U.S.C.A. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.306(a) (2012). With regard to veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where a pre-service condition underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute sufficient evidence for a non-combat veteran to show increased disability for section 1153 purposes unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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). 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). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). The Veteran contends that his current obesity was aggravated by service. Service treatment records show that on enlistment examination in May 1971, the Veteran weighed 275 pounds and was noted to be obese on the examination report. Various written notations are present on the examination report, and it appears that the Veteran was eventually deemed to be qualified for enlistment in April 1972. An April 1972 administrative remark from the enlisting officer at the Armed Forces Examining and Entrance Station (AFEES) indicated that the Veteran did not meet the physical standards for enlistment due to being overweight. At that time, the Veteran certified that the provisions of the Medical Remedial Enlistment Program had been explained to him that he agreed to undergo appropriate remedial medical correction or procedures as prescribed by the Chief, Bureau of medicine and Surgery. He further certified that he understood that after completion of such remedial medical corrective action or a reasonable time thereafter, if he was found not fully fit for active service in the U.S. Navy, he was subject to existing regulations governing discharge from the Naval Service. In June 1973 the Veteran weighed 280 pounds. Subsequently in June 1973 he weighed 276 pounds. In March 1974 he weighed 263 pounds. On Separation examination in March 1974, the Veteran's weight was 265 pounds. In April 1974 he weighed 268 pounds. A May 1974 memorandum indicates that the Veteran was recommended for separation for the convenience of the government, due to obesity. The author noted that the Veteran had been advised that obesity due to dietary indiscretion could be a disqualifying factor for retention and was placed on a dietary control regime. He stated that the Veteran's non-adherence to the program rendered him militarily unsuitable. On release from active duty in December 1974, the Veteran's weight was 240 pounds. Records following the Veteran's separation from service indicate that he has struggled with his weight and that he is currently considered to be morbidly obese. At his October 2011 hearing, the Veteran testified that he entered service under a special program and that he did lose weight during service. He indicated that the Navy did not keep its bargain with him. Having reviewed the record, the Board has determined that service connection is not warranted. As indicated, the Veteran's obesity was noted at service entrance, and he certified that he had been counseled as to the Medical Remedial Enlistment Program and that he understood that he might be subject to existing regulations governing discharge. As such, the condition of obesity was noted at entry for the purposes of 38 U.S.C.A. § 1111. Therefore, the presumption of soundness does not attach. Having found that a disability was noted on enlistment, the Board must consider whether there was an increase in disability during such service so as to warrant the presumption of aggravation. 38 U.S.C.A. § 1153 (West 2002). If so, clear and unmistakable evidence that such increase was not beyond the natural progress of the disease is required to rebut the presumption of aggravation. In this regard, the Board notes that while there was some fluctuation in the Veteran's weight during service, he ultimately left service weighing 35 pounds less than at entrance. As such, the evidence does not show that there was an increase in the underlying disability noted at service entrance. Notably, while the Veteran's discharge from service was on the basis of obesity, the evidence shows this was because he did not meet weight goals set for him under the remedial enlistment program and not due to a permanent worsening of this claimed disability. Furthermore, the Board acknowledges the Veteran's own contentions. He asserts that he was told he should weigh 240 or 250 pounds, and although he reached the goal, he was told that he failed to meet the weight loss requirements and would be discharged. He asserts that the military broke its contract with him and that other disabilities arose from his obesity. Certainly, he is competent to describe symptoms during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the service records show, and the Veteran acknowledges, that while there were fluctuations in the Veteran's weight, he ultimately lost weight prior to his discharge. The Veteran's statements have been considered, however, the most probative evidence consists of the service treatment records which document the Veteran's weight contemporaneous in time with service. In summary, the competent and probative medical evidence of record does not show that the Veteran's preexisting obesity was permanently aggravated by active service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for an acquired psychiatric disorder must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for chronic obesity is denied. REMAND The Veteran seeks service connection for depression. While this issue has been characterized as one for service connection as secondary to the claimed obesity, the Board also notes that during his October 2011 hearing, the Veteran testified that he was depressed because he was unable to take care of his family due to his knee disability. The record currently contains an assessment of depressive disorder not otherwise specified, rendered in January 2010. As there is a diagnosis of depressive disorder and the Veteran is currently in receipt of service-connected benefits for his bilateral knee disability, the Board concludes that an examination is warranted to determine the etiology of the currently assessed depressive disorder. At his October 2011 hearing, the Veteran testified that his knees rendered him unable to work. He described his symptoms and their severity. The Board observes that the Veteran was most recently afforded a VA examination in February 2010, approximately three years ago. As the Veteran's description of his knee disability suggests worsening, the Board has determined that a current examination is warranted. The Board observes that a TDIU was denied in the RO's April 2010 rating decision. In his May 2010 notice of disagreement, the Veteran specified that he disagreed with all of the adjudicative determinations mentioned in the rating decision. As the Veteran reports that he is unable to work due to the disabilities of the knees, the issue of entitlement to a TDIU is considered part of his claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, a notice of disagreement is not required to place the issue in appellate status. As this issue is inextricably intertwined with the increased rating issues as well as the service connection issue, action on TDIU is deferred at this time. With respect to the 38 C.F.R. § 4.29 and § 4.30 claims, the Veteran asserts that 38 C.F.R. § 4.29(b) is applicable as he was treated for the disabilities of the knees while he was hospitalized. In this regard, there is a medical record dated July 9, 2010, which indicates that Lido patches were effective for knee pain. This same treatment note indicates that bedside treatment was performed on June 8 and June 14, 2010, however, these records are not in the claims folder or in Virtual VA. As it appears that there are outstanding relevant records, remand is necessary. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain VA medical records as follows: a. VA medical records dating from February 2010; and b. all VA progress notes and other records pertaining to inpatient treatment of the Veteran from June 7, 2010 until his discharge in July 2010. 2. Upon completion of the development directed in paragraph 1, schedule the Veteran for a VA examination to determine the etiology of any currently present acquired psychiatric disorder, including depressive disorder. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed, and their results reported. Following review of the claims file and examination of the Veteran, the examiner should identify all currently present acquired psychiatric disorders. The examiner should then provide an opinion regarding 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 any currently present acquired psychiatric disorder, including depressive disorder, began in or is related to any disease or injury in service. Is it 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 any currently present acquired psychiatric disorder was caused by the service-connected disabilities of the knees. Is it 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 any currently present acquired psychiatric disorder was aggravated (i.e., worsened) beyond the natural progress by the service-connected disabilities of the knees. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's psychiatric disorder(s) found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disabilities of the knees. 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. Upon completion of the development directed in paragraph 1, schedule the Veteran for a VA examination to determine the severity of his service-connected Osgood Schlatter's disease. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected Osgood Schlatter's disease. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain. The examiner's report should include a description of the above factors that pertain to functional loss due to the knee disabilities that develops on repetitive use or during flare-up. Based on current examination of the Veteran as well as review of the evidence of record to include post service treatment reports and prior physical examinations of the Veteran, the examiner should address whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. If flare-ups are not observed during the examination, the examiner should refer to earlier medical records and to the Veteran's lay statements to determine the severity of his flare-ups, and portray additional lost range of motion during such flare-ups. 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. 4. 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 before the case is returned to the Board. 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs