Citation Nr: 1311889 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 12-27 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for Parkinson's disease 3. Entitlement to an increased rating for residuals of shrapnel wound left knee, status post left knee total replacement, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to April 1952. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2012 rating decision that denied entitlement to service connection for diabetes mellitus, type II, and Parkinson's disease. That rating decision did grant a 30 percent disability rating for residuals of shrapnel wound of the left knee, status post left knee total replacement. The Veteran appeals for a higher rating. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not serve on active duty in Vietnam during the Vietnam war; exposure to herbicides/Agent Orange exposure is not presumed for VA compensation purposes. 2. Diabetes mellitus was first manifested many years after discharge from active duty and is unrelated to military service. 3. Parkinson's disease was first manifested many years after discharge from active duty and is unrelated to military service. 4. Residuals of a left knee shrapnel wound, status post left knee total replacement, are not manifested by chronic residuals including severe painful motion and weakness, by evidence of ankylosis, by extension limited to 30 degrees, or by nonunion of the tibia or fibula with loose motion requiring a brace. CONCLUSIONS OF LAW 1. Diabetes mellitus was neither incurred in nor aggravated by active military service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1110, 1112, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Parkinson's disease was neither incurred in nor aggravated by active military service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1110, 1112, 1112, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for an evaluation in excess of 30 percent for residuals of shrapnel wound left knee, status post left knee total replacement, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a 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). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in September 2011 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and affording a VA examination regarding the claim of entitlement to an increased rating. The Board finds that this examination is adequate to render a determination as to this issue on appeal. The Board acknowledges that the Veteran was not provided a VA examination for type II diabetes and Parkinson's disease. As discussed in further detail below, there is no evidence of either disability during service or for many years thereafter. As well, the evidence of record does not suggest a relationship between current disability and active service. Therefore, the requirements for a VA examination are not met. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79 (2006). The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims are ready to be considered on the merits. Pertinent Law and Regulations - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110; 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be 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. Where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946 and type II diabetes and/or paralysis agitans (Parkinson's disease) becomes manifest to a degree of at least 10 percent within one year from the date of termination of active duty, such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of the disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Service connection for diabetes mellitus, type II/Parkinson's disease. Service treatment records do not show signs, symptoms or diagnosis of diabetes, a nerve disorder, or Parkinson's disease. At his April 1952 separation examination the Veteran's endocrine system and neurologic status were reported as clinically normal. Urinalysis was negative for sugar. A claim for type II diabetes and Parkinson's disease was received in September 2011. In statements in the record, the Veteran asserts that he worked for the United States State Department and was in Vietnam assigned to the Internal Defense Personnel/Public Safety. He has submitted documentation evidencing presence in Vietnam that includes a letter of appreciation from the United States Military Assistance Command in Vietnam and a Completion of Assignment Report from the Agency for International Development. There is also other documentation indicating that the appellant was in Vietnam between 1963 and 1965. Of record are private and VA treatment records dated decades after the Veteran's separation from active duty showing diagnoses of type II diabetes and Parkinson's disease. Review of the evidence discloses no evidence of diabetes or symptoms consistent with Parkinson's disease during service or for many years thereafter. Therefore, service connection for type II diabetes and Parkinson's disease may not be granted on a direct or presumptive basis pursuant to 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, the record does not contain competent evidence relating the current diagnoses to active military service or events therein. The Board acknowledges that if a veteran was exposed to an herbicide agent during active service, certain diseases, including type II diabetes and Parkinson's disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). Veterans who served in the Republic of Vietnam during the applicable time period set forth by regulation, and veterans who served with certain units in or near the Korean Demilitarized Zone during the applicable time period (April 1, 1968-August 31, 1971), are presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iii), (iv). The Veteran claims exposure to herbicides/Agent Orange in Vietnam and asserts that as such, he is entitled to service connection for diabetes mellitus, type II and Parkinson's disease. The record reflects, however, that while there is indeed evidence to show that he was in Vietnam, he was not serving there as a member of the United States Armed Forces performing active military service as required by 38 C.F.R. § 3.309(e). The appellant himself has admitted that his Vietnam presence was in his capacity as a civilian civil servant with the United States State Department. This duty does not qualify for purposes of establishing presumptive service connection based on Agent Orange exposure. Additionally, while the Veteran's DD Form 214 indicates that he had service in Korea, there is no indication that he served during the specific time frame from April 1, 1968 to August 31, 1971. His service was in the 1950s. As such, service connection for type 2 diabetes and Parkinson's disease on a presumptive basis due to herbicide exposure is not warranted. The preponderance of the evidence is against the claims and the appeal is denied as to the above matters. See 38 C.F.R. § 3.102 (2012). 2. Increased rating for residuals of shrapnel wound of the left knee, status post left knee total replacement. The Veteran was originally granted service connection for residuals of shrapnel wound of the left knee in a November 1952 rating decision, and assigned a 10 percent evaluation. A claim for an increased rating was received in September 2011. By rating action dated in January 2012, the rating was increased to 30 percent and recharacterized as residuals of shrapnel wound of the left knee, status post left knee total replacement. The Veteran receives a separate 10 percent rating for residuals of a muscle group XII injury, but that rating is not at issue before the Board. Pertinent law and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2011). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet.App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). 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); 38 C.F.R. §§ 3.102, 4.3 (2012). The appellant's right knee disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 which provides that prosthetic replacement of the knee joint warrants a 30 percent minimum rating. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. Flexion limited to 30 degrees warrants a 20 percent evaluation. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code Diagnostic Code 5260. (2012). When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating is warranted. If extension is limited to 30 degrees, a 40 percent evaluation is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is evaluated as follows: with slight knee or ankle disability (10 percent); with moderate knee or ankle disability (20 percent); and with marked knee or ankle disability (30 percent). A 40 percent evaluation is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). Factual background In January 1952, the Veteran suffered a left knee shrapnel wound while serving in combat in Korea. A foreign body was surgically removed, and the wound healed completely in normal time. At an October 1952 VA examination the Veteran reported suffering from morning stiffness, and aching during stormy weather and when "over working" the joint. Orthopedic examination revealed a "V" shaped nontender, but slightly adherent scar. The Veteran could squat and rise without assistance. There was no abnormal left knee mobility. There was no fluid. X-ray revealed a slight lateral tibia epicondyle defect. The Veteran was afforded a VA examination in December 2011. He stated that he had had a left total knee replacement in 2003 and had suffered mild ongoing pain and weakness in the knee since that time. He related that flare-ups and pain affected knee functioning. Physical examination revealed left knee flexion to 100 degrees and extension to zero degrees. There was no objective evidence of painful motion. He was able to perform repetitive use testing with three repetitions. There was zero degrees of hyperextension. It was reported that the Veteran had some functional loss and/or impairment of the knee and lower leg that included less movement than normal, weakened movement, excess fatigability, incoordination/impaired ability to execute skilled movements smoothly, pain on movement, and disturbance of locomotion. The examiner indicated that disturbance of locomotion and incoordination were primarily due to unrelated Parkinson's disease. The examiner stated that the appellant had tenderness or pain to palpation of the joint line or soft tissue in the left knee. Muscle strength was 4/5 for left knee flexion and extension. There was normal anterior, posterior and medial-lateral stability. There was no evidence of recurrent patellar subluxation/dislocation. The examiner depicted residuals of total knee joint replacement as an intermediate degree of residual weakness, pain or limitation of motion. He did not have painful scarring. The Veteran was noted to utilize a walker for assistance in ambulating. It was found that left knee functioning was not so diminished that amputation would equally well serve him. An X-ray of the left knee did not disclose arthritis or patellar subluxation. It was reported that X-rays did suggest the possibility or prosthetic loosening that might require further surgery in the future. The examiner opined that ongoing weakness and pain impacted the ability to perform work requiring extensive walking, bending, squatting or standing. C. Huntsman, M.D, wrote in January 2012 that the Veteran's left knee had gotten progressively worse since total knee replacement in 2003. It was reported that a bone scan showed inflammation in the proximal tibia but no definite signs of loosening. It was added that the left knee continued to limit the appellant's ability to engage in daily activities. A copy of the bone scan report was attached. Legal Analysis In considering whether entitlement to an evaluation greater than 30 percent is warranted, the Board acknowledges the suggestion that there is some loosening of the prosthesis and the Veteran's complaints of progressively worsening symptomatology. However, the objective evidence does not indicate that the prosthesis is misaligned. There is no evidence of instability or patellar subluxation or dislocation. His private physician, Dr. Huntsman, stated in January 2012 that while there was some indication of unspecified inflammation, there were no definite signs of loosening. The Veteran retains significant left knee flexion to 100 degrees and extension was full to zero degrees. For VA rating purposes, these findings show a noncompensable loss of extension and a noncompensable limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. At the 2011 VA examination the Veteran was reported to have stated that he had had only mild ongoing pain and weakness in the knee since his total knee replacement. Some functional loss including weakened movement, excess fatigability, incoordination, pain on movement, and disturbance of locomotion were noted. However, there was no additional limitation following repetitive use and some of his symptoms have been attributed to nonservice-connected Parkinson's disease. The examiner characterized residual weakness, pain or limitation of motion as no more than intermediate. It was clinically determined that left knee functioning was not so diminished that amputation would equally well serve him. The Board observes that there is extensive private clinical records predating the December 2011 VA examination in which there is no evidence of treatment or follow-up for the left knee, although it is mentioned peripherally. This evidence tends to suggest that left knee symptomatology is not characterized by chronic residuals consisting of severe painful motion or weakness in that lower extremity. In view of such, the Board finds that the evidence does not more nearly approximate the criteria for a 60 percent disability evaluation under Diagnostic Code 5055. There is no evidence of ankylosis of the left knee. Therefore, 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012) is not for application. As noted above, full extension was shown on recent examination. The evidence does not show extension limited to 30 degrees and an evaluation greater than 30 percent is not warranted under Diagnostic Code 5261. There is also no competent evidence that the Veteran's left knee disability is manifested by nonunion of the tibia and fibula with loose motion which requires a brace, as required for a 40 percent evaluation under Diagnostic Code 5262. Additionally, in determining whether an increased evaluation is warranted under any applicable diagnostic code, the Board acknowledges the Veteran's complaints of pain and functional limitation. The Board, however, does not find adequate pathology or other objective evidence to support a higher evaluation based on functional impairment due to pain on motion or other factors. See DeLuca v. Brown, 8 Vet.App. 202, 204-7 (1995). The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed above, however, applicable rating criteria reasonably describe the Veteran's disability level and symptomatology, and higher schedular evaluations are available for greater levels of disability. Moreover, even if all left knee area pathology is considered as part of this rating, the disability picture presented is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and referral for extraschedular evaluation is not order. Id. The evidence does not suggest that the Veteran claims he is unemployable due to service-connected disability alone, nor are the clinical findings suggestive of such. Under the circumstances of this case, the Board finds that there is no basis for inferring a claim of entitlement to a total disability evaluation based on individual unemployability. See Rice v. Shinseki, 22 Vet.App. 447 (2009). The preponderance of the evidence is against entitlement to a rating in excess of 30 percent for residuals of a left total knee replacement. The benefit sought is denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but this doctrine is not for application in this matter. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for Parkinson's disease is denied. Entitlement to an increased rating for residuals of shrapnel wound of the left knee, status post left knee total replacement, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs