Citation Nr: 1322681	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  08-29 926A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, to include as secondary to the service-connected left knee disability.

2.  Entitlement to service connection for hypertension, to include as secondary to the service-connected left knee disability.

3.  Entitlement to service connection for a stomach disorder with gastritis, helicobacter pylori and gastroesophageal reflux disease (GERD), to include as secondary to the service-connected left knee disability.

4.  Entitlement to service connection for a right shoulder disorder, to include as secondary to the service-connected left knee disability.

5.  Entitlement to service connection for a left shoulder disorder, to include as secondary to the service-connected left knee disability.

6.  Entitlement to an extension of temporary total evaluation beyond November 30, 2007, based on the need for convalescence following surgery on the service-connected left knee.

7.  Entitlement to a rating greater than 40 percent for the service-connected post operative internal derangement of left knee from December 1, 2007.

8.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from March 1987 to December 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in July 2008 and January 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In May 2012 the Board remanded the issues on appeal for additional development, which has been accomplished.


FINDINGS OF FACT

1.  Diabetes mellitus and hypertension were not manifested during service or to a compensable degree within the first year after discharge from service, and neither disorder was caused or permanently worsened by the service-connected left knee disability.  

2.  A stomach disorder with gastritis, irritable bowel syndrome (IBS), helicobacter pylori (h. pylori) and gastroesophageal reflux disease (GERD) is not etiologically related to service and is not caused or permanently worsened by the service-connected left knee disability.

3.  Disorders of the right and left shoulders are not etiologically related to service and were not caused or permanently worsened by the service-connected left knee disability; arthritis of the shoulders was not incurred in service or to a compensable degree within the first year after discharge from service.

4.  The Veteran was in need of continued convalescence following surgery on his left knee until January 1, 2008.     

5.  From January 1, 2008, the Veteran's service-connected post operative internal derangement of left knee has been manifested by painful motion, flexion to 60 degrees or better and extension to 30 degrees or better. 

6.  The Veteran's service-connected disabilities do not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience.


CONCLUSIONS OF LAW

1.  The requirements for establishing service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

2.  The requirements for establishing service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

3.  The requirements for establishing service connection for a stomach disorder have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).
 
4.  The requirements for establishing service connection for a right shoulder disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

5.  The requirements for establishing service connection for a left shoulder disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

6.  The criteria are met for an extension until January 1, 2008, of temporary total evaluation based on the need for convalescence following surgery on the service-connected left knee, but not longer.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012).

7.  The criteria for a rating greater than 40 percent for the service-connected post operative internal derangement of left knee from January 1, 2008, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261, 5262 (2012).
 
8.  The criteria for a TDIU are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The United States Court of Appeals for Veterans Claims Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The Veteran was advised of the elements required to show entitlement to the benefits claimed, to include the effective-date and disability-rating elements of a claim for service connection, prior to the issuance of the rating decisions on appeal.  
In any event, the Veteran has not alleged any prejudice due to the timing or content of the notice provided.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The record also reflects that service treatment records (STRs) and available post-service medical evidence identified by the Veteran have been obtained.  Based on the Veteran assertion that he was receiving Social Security Administration (SSA) disability benefits the RO requested that SSA provide all disability determinations and the associated medical records, but as memorialized by a memorandum in February 2013 SSA responded that no medical records relating to the Veteran were 

on file at that agency.  VA has no duty to seek to obtain that which does not exist.  Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993).

The Veteran has been afforded VA examinations in regard to those disabilities for which he claims service connection, and medical opinions in regard to those claimed disabilities are of record.  In regard to the increased rating claim, the Board previously remanded the case for additional medical examination to document the current severity of symptoms; examinations were subsequently performed in June 2012 and March 2013.  The Board has reviewed the examination reports and the opinions contained therein, and finds the RO substantially complied with the requirements articulated in the Board's remand.  D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the Veteran's claims on appeal.

Entitlement to Service Connection

Applicable legal principles

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  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).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus, hypertension, arthritis, or a peptic ulcer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439 (1995).  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511. 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection for diabetes mellitus

Service treatment records (STRs) show no indication of diabetes or measured high blood sugar.  Report of Medical Examination on separation showed clinical evaluation of the endocrine system as "normal" and laboratory findings were negative for sugar.  The Veteran was discharged from active service in December 1992.

The Veteran had a VA examination in February 1993 that is silent in regard to any reported symptoms characteristic of diabetes.  The examination report is silent in regard to current diabetes, and the endocrine system was noted as "normal."

Treatment records shortly after service from Dr. Harry C. Walters dated during the period June 1995 to February 2002 show serum glucose level of 98 in November 1996; 72 in February 1997; 95 in May 1997; 104 in May 1999; 95 in September 1999; 90 in January 2000; 87 in June 2000; 86 in October 2000; 100 on February 2001; and, 90 in June 2001.  Per the criteria in the margins of the reports, these readings were considered normal (reference interval was between 65 and 109).

The Board finds at this point that the normal blood sugar readings taken as late as October 2006 demonstrate the Veteran did not have diabetes mellitus to a compensable degree within a year after his discharge from service in December 1992.

The Veteran presented to the VA primary care clinic (PCC) in January 2007 to get established for care.  He reported family history of diabetes (two sisters had the disease).  The intake report is silent in regard to the Veteran currently having diabetes or abnormal blood sugar level.

A VA PCC note dated in July 2007 records the Veteran had abnormal laboratory results significant for "very high glucose."  However, the Veteran was not yet formally diagnosed with diabetes mellitus. 

A VA gastrointestinal clinic consult dated in October 2008 notes current diagnosis of noninsulin-dependent diabetes mellitus.

In his claim for service connection, received in July 2009, the Veteran asserted diabetes mellitus was related to his knee surgery, although he did not explain the nature of such a relationship.

The Veteran had a VA diabetes mellitus examination in November 2011, performed by a physician who reviewed the claims file and VA treatment records.  The examiner noted that elevated blood sugars had been first observed in 2007-2008.  The Veteran had been treated since then with different oral hypoglycemic medications.  The examiner diagnosed current diabetes type 2, without complications.

The VA examiner cited above issued an addendum in December 2011 opining that the Veteran's diabetes mellitus was not caused or aggravated by his service-connected left knee disability.  As rationale, the examiner stated there are no medical facts linking diabetes to left knee problems.  To the degree that the left knee hinders the Veteran in exercising, this is not considered a cause for diabetes but rather a way to control it.  Further, the Veteran's blood sugar is documented as well-controlled without signs of aggravation.
 
The Veteran's most recent VA examination was performed in March 2013, in the course of which the Veteran asserted that his diabetes had been caused by previous cortisone injections.

Review of the file shows the Veteran is diagnosed with diabetes mellitus.  Accordingly, the first element of service connection - medical evidence of a disability - is met.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  This is the essence of the third part of the analysis in Davidson and Hickson.

The file does not show, and the Veteran does not contend, that diabetes was manifested in service, so direct service connection under 38 C.F.R. § 3.303 is not applicable.  As noted above, the Veteran did not have diabetes mellitus to a compensable degree within a year after his discharge from service, so presumptive service connection under 38 C.F.R. § 3.309(a) is also not applicable.  

The Veteran has articulated his personal belief that his diabetes is secondary to the service-connected left knee disability (which is his only service-connected disability).  However, the etiology of diabetes is a complex question not within the competence of a layperson; accordingly, the Veteran's lay opinion is not probative.  Kahana, 24 Vet. App. 428.  He did not provide any competent evidence supporting his contention.

It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.  Jones v. Brown, 7 Vet. App. 134, 137 (1994).  Further, the findings of a physician are medical conclusions that the Board cannot ignore or disregard.  Willis v. Derwinski, 1 Vet. App. 66 (1991).  In this case, competent and uncontroverted medical opinion in the form of the November 2011 VA examination report (with December 2011 addendum) establishes that the Veteran's diabetes is not proximately caused by, or aggravated by, his service-connected left knee disability.  

The Board finds at this point that the VA examiner cited above was demonstrably fully informed of the pertinent factual premises of the case and provided a fully articulated opinion with supporting reasoned analysis.  The medical opinion is accordingly probative under the standard articulated in Nieves-Rodriguez, 22 Vet. App. 295, 303-304 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

Based on the evidence and analysis above the Board finds the Veteran's diabetes mellitus is not due to or aggravated by service and is not proximately due to or aggravated by a service-connected disability.  Accordingly, the criteria for service connection are not met and the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


Service connection for hypertension

Under VA rating criteria, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1).

STRs show no indication of hypertension.  In his self-reported Report of Medical History, executed at the time of his separation examination, the Veteran denied history of high or low blood pressure.  Report of Medical Examination on separation showed blood pressure of 115/57 and clinical evaluation of the heart as "normal."  The Veteran was discharged from active service in December 1992.

The Veteran had a VA examination in February 1993 in which his blood pressure was 136/80.

Treatment records shortly after service from Dr. Harry C. Walters dated during the period June 1995 to February 2002 show no indication of hypertension.  The Veteran's blood pressures were 118/76 in November 1996; 106/74 in May 1999; 108/70 in June 2000; 110/70 in October 2000; and, 140/70 in June 2001, all of which readings fall within the normal range. 

The Board finds at this point that the normal blood pressure readings in February 1993 through June 2001 demonstrate the Veteran did not have hypertension to a compensable degree during the year following discharge in December 1992.

The Veteran presented to the VA PCC in January 2007 to get established for care.  He denied family history of heart disease, and the intake report is silent in regard to the Veteran currently having hypertension.

The Veteran presented to the VA emergency room (ER) in August 2008 with complaint of stomach pain.  His current blood pressure was 132/92.

The Veteran presented to the VA PCC in September 2008 complaining of continued discomfort in the lower chest and upper/lower abdomen.  His blood pressure was 116/70.  He presented to the VA PCC in December 2008 with generalized complaints.  His blood pressure was measured as 116/86.  He again presented to the VA PCC in April 2009 again complaining of discomfort and distention in the upper abdomen.  His blood pressure was 110/70.

In his claim for service connection, received in July 2009, the Veteran asserted "high blood" was related to his knee surgery, although he did not explain the nature of such a relationship.

The Veteran had a VA examination in November 2011, performed by a physician who reviewed the claims file and VA treatment records.  The Veteran reported onset of hypertension in 2007, although the examiner was unable to find record of high blood pressure except as historical reference.  The Veteran had been treated with lisinopril since April 2011.  The Veteran denied having any complications of hypertension.  The examiner diagnosed current hypertension, but stated hypertension is not caused by diabetes.

The VA examiner cited above issued an addendum in December 2011 opining that the Veteran's hypertension was not caused or aggravated by his service-connected left knee disability.  As rationale, the examiner stated there are no medical facts linking hypertension to left knee problems.  To the degree that the left knee hinders the Veteran in exercising, this is not considered a cause for hypertension, but rather a way to control it.  Further, the Veteran's blood pressure is documented as well-controlled without signs of aggravation.

Review of the evidence demonstrates the Veteran is diagnosed with hypertension; accordingly, the first element of service connection is met.  However, hypertension was not manifested during service or to a compensable degree within the first year after discharge from service.  Accordingly, service connection on a direct basis, to include under presumption for a chronic disorder, is not warranted.  38 C.F.R. §§ 3.303, 3.309(a).

The Veteran contends service connection is warranted for hypertension as secondary to medications he takes for his service-connected left knee disability. However, he did not provide any competent evidence supporting such contention.  Medical opinion of record, in the form of the November 2011 examination report (with December 2011 addendum), shows the Veteran's hypertension is not due to or aggravated by his left knee disability.  The examiner's opinion is demonstrably probative under the criteria of Nieves-Rodriguez.   Further, the examiner's medical opinion is not contradicted by any other medical opinion of record.  

The Veteran has asserted his personal opinion that his hypertension is secondary to his service-connected knee disability.  However, the diagnosis and etiology of hypertension requires medical expertise to determine.  Indeed, hypertension can be due to numerous causes.  Thus, the Veteran is not competent as a layperson to provide a medical opinion regarding the etiology of his hypertension, which is a complex medical issue.  Kahana, 24 Vet. App. 428.

Based on the evidence and analysis above the Board finds the Veteran's hypertension is not due to or aggravated by service and is not proximately due 
to or aggravated by a service-connected disability.  Accordingly, the criteria for service connection are not met and the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for a stomach disorder

STRs show no indication of digestive complaints.  In his self-reported Report of Medical History, executed at the time of his separation examination, the Veteran denied history of frequent indigestion or stomach, liver or intestinal trouble.  Report of Medical Examination on separation showed clinical evaluation of the abdomen and viscera as "normal" and recorded no digestive disorder.  The Veteran was discharged from active service in December 1992.

The Veteran had a VA examination in February 1993 in which the digestive system was noted as "normal."

Treatment records from Dr. Harry C. Walters dated in November 1996 show the Veteran complained of "heartburn."  The clinical diagnosis was gastroesophageal reflux disease (GERD); also noted was helicobacter pylori (h. pylori).

The Veteran presented to the VA PCC in January 2007 to get established for care.  The intake note is silent in regard to any current complaints related to the stomach.

The Veteran had a VA examination of the knee in July 2008 in which he reported he was taking two prescription medications for his knee, and complained that the medication upset his stomach.  

The Veteran presented to the VA ER in August 2008 complaining of intermittent abdominal pain for the past four weeks.  He had been seen at a non-VA hospital 
but tests were normal.  Pain was worse after eating and with lying down.  He 
denied nausea or vomiting but endorsed constipation and stated he was taking Hydrocodone for pain management.  The clinical impression was abdominal pain, most likely GERD.

The Veteran presented to the VA PCC in September 2008 complaining of continued discomfort in the lower chest and upper/lower abdomen, brought on by eating in the morning and associated with constipation.  The clinical impression was obstipation.

The Veteran had a VA orthopedic surgery follow-up in September 2008 following knee surgery, in which he complained that the Hydrocodone he had been taking for his knee pain seemed to "mess up" his stomach.

The Veteran presented to the VA PCC in September 2008 complaining of continued discomfort, tightness and fullness in the upper abdomen after eating and most of the time for the past month.  The clinical impression was positive h. pylori and possible diabetic gastroparesis.

The Veteran had a VA gastrointestinal (GI) consult in October 2008, having been referred by his primary care physician due to complaint of upper abdominal pain.  The Veteran endorsed stomach pain, worse after eating certain foods; he admitted being on a "binge diet."  The clinician noted the Veteran's GI history and complaints in detail, as well as the Veteran's current medications.  The Veteran complained subjectively of epigastric pain, constipation, flatulence, gas and dyspepsia.  The clinical impression was h. pylori (treated) and epigastric abdominal pain questionable for irritable bowel syndrome (IBS).  The consult is silent in regard to any relationship between the Veteran's digestive complaint and his service-connected left knee disability, to include medications associated with that disability.

The Veteran presented to the VA PCC in December 2008 with generalized complaints including continued discomfort in the upper abdomen, now with diarrhea.  The clinical assessment was upper abdominal pain of uncertain etiology, possibly related to medication.  Of note, the medications cited in the report were related to treatment of nonservice-connected disorders (Omeprazole for digestion, simvastatin for cholesterol and Metformin for diabetes); there is no reference to the medications associated with the service-connected left knee disability. 

The Veteran presented to the VA ER in February 2009 with complaints of continued bloating, cramping and pain.  The physician's impression was 
dyspepsia of uncertain etiology.

The Veteran had a VA GI clinic follow-up in February 2009 in which he complained of continued dyspepsia, reflux and constipation.  The clinical impression was h. pylori, GERD, chronic gastritis and epigastric abdominal pain.

The Veteran presented to the VA PCC in March 2009 for follow-up of discomfort in the upper abdomen and lower chest with tightness and bloating.  The physician noted it was difficult to obtain a consistent history from the Veteran but entered a current impression of possible upper GI disorder (although previous colonoscopy and esophagogastroduodenoscopy [EGD] had been unimpressive) and possible giardiasis or nonulcerative dyspepsia.

A VA upper GI (UGI) series in March 2009 showed a moderate sliding hiatal hernia with very significant gastroesophageal reflux.

The Veteran presented to the VA PCC in April 2009 again complaining of discomfort and distention in the upper abdomen.  The clinician entered a statement that the Veteran was apparently being over-medicated for blood pressure and discontinued two medications: Reglan (for heartburn and reflux) and lisinopril (for hypertension).  The upper GI symptoms were attributed to aerophagia and nonulcerative dyspepsia.
  
In April and May 2009 the Veteran's VA providers continued to juggle 
medications in response to the Veteran's complaints of intestinal problems, although Hydrocodone (for pain management of the left knee) was not cited as one of those problematic medications.  In May 2009 the clinician entered an impression of acid reflux/hiatal hernia.

In his claim for service connection, received in July 2009, the Veteran asserted stomach problems were due to medications to control post-surgical knee pain.

A VA GI consult in July 2009 notes the Veteran's reported symptoms and states an impression that despite negative gastric emptying the Veteran's symptoms were probably a combination of functional motility disorder mainly related to diabetes mellitus.  This impression was endorsed by another gastroenterologist in August 2009.

The Veteran complained during a VA GI clinic follow-up in October 2009 that raglan (prescribed for heartburn and reflux) had made his symptoms worse.  The clinical assessment was bloating, GERD and diabetes mellitus.

Relevant to the Veteran's digestive/abdominal complaints, he had a VA ultrasound in October 2009 that showed hepatomegaly and hepatic steatosis.

The Veteran presented to the VA PCC in November 2009 and was seen by a new primary care physician (PCP) who noted the Veteran had multiple vague abdominal complaints, for which he had extensive workups at the GI clinic without any significant findings (except for h. pylori virus, which was appropriately treated).  Despite treatment the Veteran continued to have the same multiple complaints, which had failed every imaginable treatment.  By the Veteran's history, it was unclear medications he was currently taking.  The PCP's impression was psychosomatic abdominal pain syndrome of uncertain etiology, to be treated with antidepressants.  The only apparent GI problem was hepatomegaly and steatosis of the liver, probably related to poor control of lipids and blood sugars over many years.  With better control of diabetes and hyperlipidemia, the liver should improve.
 
A VA GI clinic follow-up in December 2009 shows an impression of IBS, refractory to all treatments to date; GERD; and, obesity.

In January 2010 the Veteran was referred by VA to the University of North Carolina (UNC) for consultation regarding IBS.  The physician noted the Veteran to be a poor historian with possible cognitive impairment, but the Veteran essentially complained of stomach problems since knee surgery in August 2008.  The physician's initial impression was persistent epigastric and mid-abdominal discomfort with presumably negative workup; further opinion was deferred pending review of outside medical records.

The Veteran presented to the VA PCC in March 2010 with the same vague complaints of fullness in the stomach after eating anything and severe acid reflux despite being on medications.  The PCP's impression was GERD by history but symptoms possibly due to IBS; type II diabetes mellitus complicated by obesity; vitamin-D deficiency; hyperlipidemia; and, obesity.  In an addendum, the PCP stated he seriously believed the Veteran to have a major psychiatric component to these abdominal complaints.

VA computed tomography (CT) scan of the abdomen in April 2010 showed no acute disease; fatty liver; small fat-containing umbilical hernia; and a nonspecific mildly enlarged right inguinal lymph node.

A May 2010 treatment note by UNC states the Veteran appeared to have very poor insight into his condition, and his overall intellect seemed limited.  The clinical impression was functional dyspepsia, chronic constipation and possible mood disorder.

The Veteran had a VA examination for digestive disorders in June 2010 in which he complained of epigastric pain with onset after knee surgery.  The Veteran reported that physician had attributed his symptoms to postoperative medications, but symptoms had not cleared after discontinuation of pain medications.  The Veteran reported he had not worked since 2006 due to chronic knee pain and also due to stomach pain.  The examiner performed a clinical examination and noted observations in detail.  The examiner diagnosed gastritis with h. pylori, hiatal hernia and GERD.  The examiner stated an opinion that the Veteran's diagnosed disorder is not likely caused by or a result of medication used for postoperative pain after knee surgery.  The examiner stated as rationale that ibuprofen may have initially aggravated the Veteran's digestive symptoms, but the symptoms persisted after ibuprofen was discontinued.  Accordingly, the Veteran's symptoms are more likely related to gastritis and GERD, both of which were shown to be nonresponsive to therapy, and less likely related to postoperative ibuprofen.
 
The Veteran had a VA GI clinic follow-up in August 2010 in which he complained of abdominal cramping and incomplete emptying of the colon for two years.  The clinical impression was functional constipation associated with a spastic colon.

The Veteran's most recent VA examination was performed in March 2013, during which the Veteran asserted that oral pain medications including Hydrocodone and acetaminophen had caused GI distress and increased his reflux symptoms.

Review of the file shows the Veteran is diagnosed with stomach disorders including IBS, GERD and h. pylori.  Accordingly, the first element of service connection - medical evidence of a disability - is met.  However, to show entitlement to service connection there must also be evidence of an etiological connection between military service and the disability.  Boyer, 210 F.3d 1351, 1353.

STRs do not show, and the Veteran does not contend, that he had stomach 
problems in service.  He does not have a chronic stomach disorder for which service connection under 38 C.F.R. § 3.309(a) can be considered.  The earliest indication of a chronic stomach disorder occurs in treatment records from 1996, four years after discharge from service.  Accordingly, there is no basis on which direct service connection can be considered.

The Veteran has asserted his belief that his stomach problems are due to or aggravated by the medications he has taken over the years for his service-connected left knee disability, but this is contradicted by the medical evidence of record in the form of the June 2010 VA medical examination.  The Board finds that review of the examination report shows the opinion to be probative under Nieves-Rodriguez; it is also uncontroverted by any other medical opinion of record.  There is in fact a suggestion in the clinical records that the Veteran's digestive symptoms may be aggravated by his diabetes mellitus, but as diabetes is not a service-connected disability this does not suggest entitlement to service connection on a secondary basis.  The Board also finds that the etiology of stomach disorders, variously diagnosed, is a complex medical question that is not within the competence of a layperson.  Kahana, 24 Vet. App. 428.  Thus, the Veteran's opinion as to the etiology of his stomach disabilities is not competent medical evidence. 

Based on the evidence and analysis above the Board finds the Veteran's stomach disorders, variously diagnosed, are not due to or aggravated by service and are not proximately due to or aggravated by a service-connected disability.  Accordingly, the criteria for service connection are not met and the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for right and left shoulder disorders

STRs show that in July 1990 the Veteran complained of left shoulder pain associated with doing push-ups; the clinical impression was strain of the left trapezius/latissimus muscle.  In January 1991 the Veteran complained of right shoulder pain associated with lifting weights; the clinical impression was muscle strain or sprain of the right trapezius.  In May 1991 he complained of left shoulder pain associated with lifting a box; the clinical impression was left deltoid strain.   In September 1992 the Veteran complained of pain in the left shoulder since unloading lumber from a truck; clinical examination was grossly normal and the impression was latissimus dorsi strain.  

In his self-reported Report of Medical History, executed at the time of his separation examination, the Veteran denied history of painful "trick" shoulder.  Report of Medical Examination on separation showed clinical evaluation of the upper extremities as "normal."  The Veteran was discharged from active service in December 1992.

The Veteran had VA general medical and orthopedic examinations in February 1993.  Neither examination shows current complaint of shoulder problems or history of chronic shoulder disorder.

The Veteran presented to the VA PCC in January 2007 to get established for care.  The intake note is silent in regard to any current complaints related to the shoulders.

The Veteran presented to the VA PCC in December 2008 with generalized complaints including considerable right shoulder pain.  He was referred to the rehabilitation clinic for right shoulder treatment.

The file contains a VA rehabilitative medicine services (RMS) note in December 2008 in which the Veteran was cited for complaint of pain, stiffness, and limited ROM of the right shoulder.  The clinical impression was tendonitis and capsulitis of the right shoulder.

A VA PT note in February 2009 states the Veteran reported having hurt his right shoulder three months earlier.  However, a right shoulder X-ray in June 2008 showed degenerative changes with spurring in the inferior acromion.  The clinical impression was possible rotator cuff tear, with spurring per X-ray.

A VA X-ray of the left shoulder in May 2009 showed developing cortical irregularity in the humeral head, but there were no calcifications and the acromial space and acromioclavicular (AC) joint were both normal.

VA magnetic resonance imaging (MRI) of the right shoulder in June 2009 showed degeneration and a partial tear in the infraspinatus tendon, rotator cuff impingement produced primarily by downsloping acromion and mild osteoarthritis of the AC joint.  
 
In his claim for service connection, received in July 2009, the Veteran asserted he had injuries to both shoulders as a result of knee surgery.  He did not explain the nature of such a relationship.

The Veteran had a VA orthopedic consult in July 2009 in which he complained of pain in both shoulders.  The Veteran reported onset of right shoulder pain after his knee surgery in August 2008, and onset of left shoulder pain in approximately December 2008.  Injections and PT has been of minimal benefit.  X-ray and 
MRI diagnostics were reviewed.  The clinician's impression was degenerative joint disease (DJD) of the acromioclavicular joint with impingement in both shoulders, as well as adhesive capsulitis in both shoulders.

The Veteran had a VA examination of the shoulders in June 2010 in which he described an injury to the right shoulder in 2004; he did not recall any prior problems with either shoulder.  He noted incident of right and left shoulder pain in service but stated these were isolated events with complete recovery and no further problems until the right shoulder injury in 2004.  The examiner performed a clinical examination and noted observations in detail.  The examiner diagnosed DJD of the right shoulder and early cortical irregularity of the left shoulder. The examiner stated an opinion that the current diagnosed bilateral shoulder disorder was not likely related to shoulder pain during military service.  As rationale, the examiner stated that the shoulder pains in service appeared to be isolated events without indication that they were chronic or recurring.  The Veteran did not have problems with shoulder pain until an injury in 2004, which event was the beginning of his current shoulder problems.  The examiner stated it is unlikely the Veteran had a chronic shoulder condition prior to 2004.

The Veteran had another VA examination in November 2011, performed by an examiner who reviewed the claims file and VA treatment records.  The Veteran was noted to have onset of acute self-limited shoulder strain in STRs but no evidence of chronic or residual problems.  Outside records show history of shoulder pain around 2000 without definite diagnosis or treatment.  The Veteran reported his shoulders started to bother him after the left knee surgery, because that surgery caused him to have to use his arms more in getting up and sitting down.  Examination showed impingement and tendinopathy with questionable tear on MRI and X-rays showed bilateral DJD changes.  The Veteran underwent right shoulder debridement in October 2010 and continued to have constant shoulder pain, left worse than right, with crepitus.  The examiner performed a clinical examination of the shoulders 
and noted observations in detail.  The examiner diagnosed DJD of the bilateral shoulders status post right shoulder debridement and distal claviculectomy.  The examiner stated the Veteran apparently had shoulder problems for some time prior to his left knee surgery; while he may have had to use his arms more while recovering from surgery the shoulder symptoms were caused by the DJD of the shoulders, which was not caused or significantly aggravated by such use.    

Review of the file shows the Veteran was treated in service for right and left shoulder complaints, as documented in STRs.  However, that a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury.  Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997).  

While STRs show treatment in service for shoulder complaints, there is no indication of a chronic shoulder disability.  The Veteran specifically denied 
history of painful "trick" shoulder at the time of his discharge, and the separation examination shows the upper extremities as "normal" at the time of his discharge.  Further, there was no indication of a current shoulder disorder in VA examinations performed in February 1993 shortly after the Veteran was discharged from service.  The Board accordingly finds the evidence shows the Veteran did not have a chronic shoulder disorder at the time of his separation from service.

The Veteran is diagnosed with DJD, but the earliest medical evidence of DJD occurred in June-July 2009, seventeen years after his discharge from service; numerous examinations and diagnostics prior to that date are silent in regard to DJD.  The Board accordingly finds the Veteran did not have arthritis of the shoulders to a compensable degree within the first year after his discharge from service.

The Veteran has asserted his belief that his shoulder problems are due his injuries during service, but his assertion is contradicted by the medical evidence of record in the form of the June 2010 VA medical examination.  The Board finds that the opinion is probative under the criteria of Nieves-Rodriguez; it is also uncontroverted by any other medical opinion of record.  The Veteran has not asserted, and review of the file does not suggest, that he has had chronic or recurrent shoulder symptoms since his discharge from service.    

The Veteran recently suggested that his bilateral shoulder problems are due at least in part to his knee surgery, which he asserts caused him to place undue strain on his upper extremities to compensate for his postoperative weakness in the lower extremities.  This assertion is contradicted by the VA examination in November 2011.  The Board finds at this point that the November 2011 examination report meets the criteria for probative value articulated in Nieves-Rodriguez.  The opinion is uncontroverted by any other medical opinion of record.  

The Veteran, as a layperson, is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  However, the Veteran has had a number of different shoulder injuries and diagnoses, some during service and some after discharge from service.  Accordingly, the etiology of his current shoulder disability is a complex medical question that is not within the competence of a layperson.  Kahana, 24 Vet. App. 428.  Thus, the Veteran's opinion as to the etiology of his shoulder disorders is not competent medical evidence.

Based on the evidence and analysis above the Board finds the Veteran's right and left shoulder disorders are not due to or aggravated by service and are not proximately due to or aggravated by a service-connected disability.  Accordingly, the criteria for service connection are not met and the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Entitlement to Extension of Temporary Total Rating

Applicable legal principles

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3months from the first day of the month following such hospital discharge or outpatient release.  Such total rating will be followed by appropriate schedular evaluations.  When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating.  38 C.F.R. § 4.30.

Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, (3) immobilization by cast, without surgery, of one major joint or more.  The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period.  38 C.F.R. § 4.30(a).

A total rating under section (1), (2) or (3) above may be extended for intervals of 30, 60 or 90 days.  38 C.F.R. § 4.30(b)(1).  A total rating under section (2) or (3) above may be extended for up to 6 months beyond the initial 6 month period. 38 C.F.R. § 4.30(b)(2).  

Evidence and analysis

The Veteran had arthroscopic surgery on the left knee in August 2007, characterized as debridement of the medial femoral condoyle and patella plus 
lateral retinacular release.  No prosthetic item was implanted during the procedure.

During follow-up visit in September 2007 the Veteran reported he was doing "okay" after surgery.  The knee was stable and the Veteran had active flexion to 90 degrees.   The Veteran was referred to physical therapy.  Temporary total evaluation was discontinued effective December 1, 2007.

A VA orthopedic treatment note dated December 5, 2007, states the Veteran was not making good progress 3.5 months after surgery and did not appear to be trying very hard.  The Veteran had recently transitioned from crutches to a cane.  There was marked atrophy of the left quadriceps.  The surgeon noted he gave the Veteran a hinged knee brace, and also noted the Veteran needed to be pushed to gain strength and ROM or he would end up a permanent cripple.    

The Veteran was discharged from the VA physical therapy (PT) clinic on December 20, 2007.  The clinician noted the Veteran was using a standard cane and reportedly was able to sometimes ambulate around the house without assistive devices.  The Veteran was able to perform exercises but needed instruction on proper technique.  He was discharged from PT with encouragement to lead an active lifestyle. 
 
A VA surgical orthopedic note dated in January 2008 states the Veteran's biggest current problem was quadriceps atrophy; the Veteran would eventually need total knee arthroplasty but this could not be considered until he achieved better rehabilitation of the quadriceps.  The surgeon stated it appeared the Veteran had not given enough time for his knee to recover.

The Veteran had a VA orthopedic surgery follow-up in March 2008.  The surgeon noted the previous meniscectomy had only helped moderately.  The Veteran's patella was tracking nicely after the corrective surgery, but his pain was no better; he also had longstanding quadriceps atrophy that was not improved by physical therapy.  The Veteran wore a brace full-time and carried a cane.  The Veteran's sister-in-law reported that the Veteran only walked to and from the mailbox several times per day, which seemed to increase knee swelling and discomfort significantly.  Current ROM was less that it had been in April 2007.  The surgeon advised the Veteran's sister-in-law to push the Veteran into an exercise program to try to build up the quadriceps and improve ROM.

The Veteran had a VA examination of the knee in July 2008, performed by a physician who reviewed the claims file and the medical record.  The Veteran reported he had trouble keeping a job since 2002 due to his left knee problem and had not worked for the past year, but he reported he could perform activities of daily living (ADLs).  The examiner stated that a year after surgery the Veteran continued to have impairment with regard to moderate or greater physical work but appeared to be able to do sedentary or light physical work.

The Veteran had a VA compensation and pension (C&P) examination of the knee in June 2012, performed by a physician who reviewed the claims file.  The examiner stated that the PT notes regarding the Veteran's period of convalescence for his 2007 knee surgery showed that transportation, tardiness and noncompliance were issues for the Veteran.  A patient would normally be expected to recover from this type of surgery within a year.  

Review of the evidence above demonstrates that the Veteran's surgeon noted on December 5, 2007 (five days after the temporary total evaluation terminated) that the Veteran was not making good progress post-surgery.  Resolving doubt in the Veteran's favor, the Board finds this entry constitutes medical evidence that the Veteran required extension of convalescence past December 1, 2007.  In this case, the Board finds the Veteran required convalescence until he was discharged from the VA PT clinic on December 20, 2007.  Accordingly, a 30 day extension of temporary total evaluation (until January 1, 2008), is appropriate.

The Board acknowledges that a VA surgeon stated in January 2008 that the Veteran had not given enough time for the knee to recover, and thereafter the Veteran was coaxed to enter an exercise regimen to address his atrophy of the quadriceps.  However, there is no indication the Veteran actually did so.  The fact that the Veteran was discharged from the VA PT clinic on December 20, 2007, demonstrates that he had achieved the maximum convalescent benefit that 
could be provided.  

In sum, the Board has found that the criteria for extension of temporary total rating until January 1, 2008, are met.  The Veteran's appeal is granted to that extent.

Evaluation of Post Operative Internal Derangement Left Knee

Applicable legal principles

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).

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.

It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

Disabilities of the knee are rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5256 through 5263.  The applicable DCs are discussed below.  The Board notes that the Veteran has, throughout the period under review, been separately rated at 10 percent for instability of the left knee under DC 5257.  That rating is not on appeal and symptomatology associated with that rating cannot be considered in evaluating his left knee post operative internal derangement.  38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).

Limitation of flexion of a leg is rated under DC 5260.  A rating of 0 percent is assigned for flexion is limited to 60 degrees; a rating of 10 percent is assigned for flexion limited to 45 degrees; a rating of 20 percent is assigned for flexion limited to 30 degrees; and, a rating of 30 percent is assigned for flexion is limited to 15 degrees.  

Limitation of extension of a leg is rated under DC 5261.  A rating of 0 percent is assigned for extension limited to 5 degrees; a rating of 10 percent is assigned for limitation of extension to 10 degrees; a rating of 20 percent is assigned for extension limited to 15 degrees; a rating of 30 percent is assigned for extension limited to 20 degrees; a rating of 40 percent is assigned for extension limited to 30 degrees; and, a rating of 50 percent is assigned for extension limited to 45 degrees.  

Normal range of motion (ROM) of the knee is extension to 0 degrees and flexion to 140 degrees.  38 C.F.R. § 4.71a, Plate II.

The Veteran is not shown to have ankylosis (DC 5256), impairment of the tibia and fibula (DC 5262) or genu recurvatum (DC 5263), so those DCs are not applicable.  Dislocated semilunar cartilage of the knee(DC5258) and symptomatic removal of semilunar cartilage (DC 5259) have maximum ratings less than 40 percent, so rating under those DCs would present no advantage to the Veteran.
 
The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint.  VAOGCPREC 9-2004 (September 17, 2004).  

In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluation of post operative internal derangement left knee

The period on appeal for consideration begins January 1, 2008, the day the Veteran ceased to have a temporary total evaluation (100 percent) following convalescence from arthroscopic knee surgery (as awarded above).  Effective from that date, his post operative internal derangement left knee (hereinafter "left knee disability") reverted to the previous 40 percent disability level.  

A VA surgical orthopedic note dated in January 2008 states the Veteran's biggest current problem was quadriceps atrophy.  The Veteran would eventually need total knee arthroplasty but this could not be considered until he achieved better rehabilitation of the quadriceps.  The surgeon stated the Veteran had probably not given enough time for his knee to otherwise recover.
 
The Veteran submitted a letter in February 2008 stating the recent surgery had only relieved his instability; the pain was actually worse than before.

The Veteran had a VA orthopedic surgery follow-up in March 2008.  The surgeon noted the previous meniscectomy had only helped moderately.  The Veteran continued to have swelling and pain episodes every 3-4 months for several years; now, for the last 2-3 years the pain had progressed to virtually continuous pain for the past 12-18 months.  The Veteran's patella was tracking nicely after the corrective surgery, but his pain was no better.  The Veteran also had longstanding quadriceps atrophy that was not improved by physical therapy.  The Veteran wore a brace full-time and carried a cane.  The Veteran's sister reported that he only walked to and from the mailbox several times per day, which seemed to increase knee swelling and discomfort significantly.  Whereas the Veteran had full ROM in April 2007 he now had active ROM only -10 degrees to 90 degrees and passive ROM 0-105 degrees; pain increased significantly with flexion beyond the 90 degree point.  X-rays showed good patellofemoral alignment and mild narrowing in the medial compartments of both knees.  The current diagnosis was left knee posttraumatic arthritis involving the patellofemoral and medial compartments.  The surgeon noted the Veteran had not been able to hold down a regular job for at least five years due to his knee problem and would undoubtedly need a total knee arthroplasty in the future. 

The Veteran had a VA examination of the knee in July 2008, performed by a physician who reviewed the claims file and the medical record.  The Veteran complained of constant pain, worse with movement and after prolonged sitting.  The Veteran reported he was taking two prescription medications.  He was observed to use a knee brace and cane.  He reported occupational impairment in terms of impairment of prolonged standing and walking, heavy lifting, squatting or kneeling.  The Veteran reported he had trouble keeping a job since 2002 due to his left knee problem and had not worked for the past year.  However, he reported he could perform activities of daily living (ADLs).  The Veteran endorsed pain, stiffness, instability and weakness; he denied deformity, giving way, locking episodes or effusion.  He stated he could walk 6 blocks.  The Veteran was observed to walk with an antalgic gait on the left, and the right shoe showed evidence of abnormal weight bearing.  There was mild quadriceps atrophy, with the left thigh measuring 1 inch less than the right.  Active flexion was to 95 degrees against gravity, with pain beginning at 95 degrees.  Active extension against gravity was -10 degrees when supine and 0 degrees standing.  Repetitive use did not cause additional limitation of flexion or extension.  There was no instability.   X-ray impression was mild degenerative changes bilateral knees and minimal left knee joint effusion.  

The examiner's diagnosis was left knee derangement, operated, with degenerative joint disease (DJD).  The examiner noted it was close to a year since the Veteran's surgery but he had not reached full ROM and also had some persisting atrophy in the left quadriceps area; he also continued to have impairment with regard to moderate or greater physical work but appeared to be able to do sedentary or light physical work.

The Veteran had a VA orthopedic surgery follow-up in September 2008 in which he reported he had been trying to regain some strength.  He reported pain with weight bearing, particularly climbing stairs.  Physical examination showed the Veteran to have trace swelling of the left knee.  Stability was good.  Active ROM was -10 degrees to 90 degrees; passive ROM was 0 degrees to 100 degrees.

The Veteran had a VA orthopedic surgery follow-up in April 2009 in which he complained of continued severe left knee pain.  Current examination showed the Veteran to have ROM of extension to -5 degrees and flexion to 100 degrees.  There was tenderness, crepitus and moderate effusion.  X-ray showed rather severe patellofemoral arthritis.  The surgeon stated the Veteran would probably need some kind of knee replacement surgery, and should also have compensation at the pre-surgery 40 percent level.

The Veteran had a VA compensation and pension (C&P) examination of the knee in June 2012, performed by a physician who reviewed the claims file.  The Veteran reported occasional giving way but denied swelling, locking, subluxation or dislocation; he stated that wearing a brace sometimes helped.  The Veteran was not currently on oral medication for the knee.  The knee was made worse by bending while weight bearing, crossing the legs or ambulating over uneven ground.  Flare-ups were associated with any activity requiring weight bearing and by flexing more than 45 degrees; such flare-ups could last 8 hours.  The Veteran described impairment of ADLs as difficulty getting into and out of the bathtub.  Examination showed ROM of flexion to 60 degrees with pain and weakness at the end range; extension was to 0 degrees.  There was no change in measured ROM with repetition.  Functional loss was secondary to pain, weakness and diminished movement.  Muscle strength testing was 4/5 for flexion and extension.  The left quadriceps was 1 cm. smaller than the right.  There was no clinical indication of instability.  There was no indication of residual signs or symptoms of the meniscectomy surgery; the Veteran had scars but they were not clinically significant.  The Veteran was noted to use a cane constantly due to left knee pain.  The most recent X-rays showed moderate-to-marked arthritic changes in the left knee without significant interval progression.  The examiner also noted that normally a patient would be expected to recover within a year of surgery such as that performed on the Veteran in 2007, but the atrophy of the left quadriceps had likely played a role in the continued knee symptoms (the examiner noted that post-surgery physical therapy had been marked by issues related to transportation, tardiness and non-compliance). 

In regard to functional loss, the examiner stated the Veteran reported functional loss whenever he had to bend more than 45 degrees while weight bearing.  Regarding occupational functioning, the examiner stated the Veteran should be able to function in occupations that require a mild amount of walking and standing on level surfaces during the day, if provided proper ergonomic modifications to avoid bending the knee more than 45 degrees while weight bearing.  The examiner stated the Veteran would have no limitations for sedentary occupations.    

The Veteran's most recent VA examination was performed in March 2013, again by an examiner who reviewed the claims file.  The Veteran stated he had not worked since 2006 because being on his feet all day in a warehouse, with pushing, pulling and carrying heavy items, had caused increased swelling and pain.  At home, the Veteran minimized walking and steps but otherwise had no problems with household chores.  He had no difficulty with ADLs other than occasional trouble with stability getting out of the shower.  Driving presented no difficulty.  The Veteran described flare-ups associated with over-use (twisting, climbing, squatting or taking stairs); such flare-ups happened approximately two times per week, lasted all day and resulted in a 75 percent loss of motion.  

On examination the Veteran had flexion to 90 degrees with pain starting at 75 degrees; extension was to 0 degrees with pain at the end of motion.  Repetitive motion did not result in loss of measured ROM but caused less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion and interference with sitting, standing and weight bearing.  There was pain to palpation on the knee.  There was no clinical evidence of instability and no indication of recurrent patellar subluxation or dislocation.  In regard to the arthroscopy in 2007, the examiner stated the Veteran had residuals consisting of restricted ROM, continual pain and intermittent swelling.  The examiner also stated there was no evidence of current atrophy of the quadriceps on examination.

The examiner diagnosed chondromalacia of the patella, DJD and meniscectomy of the left knee.  The examiner stated that the left knee disorder would cause occupational impairment of limiting standing or walking to less than 30 minutes and then rest, and avoid all activities involving squatting, stooping or kneeling; there was no limitation on sedentary employment.    

Review of the evidence above shows that since January 1, 2008, the Veteran's flexion has at all times been to 60 degrees or better, so compensable limitation of flexion under DC 5260 is not shown.  Additionally, on all occasions during the period in question, his limitation of extension was not worse than 30 degrees, which meets the criteria for the currently-assigned rating of 40 percent under DC 5261; indeed, since March 2008 the Veteran's limitation of extension has been ratable at 10 percent or less.  Thus, the criteria for evaluation higher than 40 percent, or separate ratings, based on limitation of flexion and/or extension are not met.

Under alternative DCs relating to the knee, rating higher than 40 percent is available under DC 5256 for ankylosis in flexion between 20 degrees and 45 degrees (50 percent rating) or for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more (60 percent), but the medical evidence does not show ankylosis to any degree.  

The Board notes at this point that the VA orthopedic surgeon expressed an opinion in April 2009 that the Veteran's disability rating, which had been decreased to 10 percent, should be restored to the pre-surgery 40 percent level.  This has been accomplished.  There is no corresponding medical opinion of record asserting that the Veteran's disability should be rated higher than 40 percent.

In addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical examiners and providers.  However, the lay evidence of record simply does not show that the Veteran's disability has met the criteria for a rating higher than the currently-assigned 40 percent.  
 
The Board has considered whether "staged ratings" are for application, per Hart, 21 Vet. App. 505.  However, the Veteran is not shown to have satisfied the criteria for a rating higher than 40 percent during any discrete date range during the period under review, so "staged rating" is not appropriate.  

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  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.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  

In this case, the manifestations of the service-connected knee disability (limitation of motion due to pain and associated weakness, fatigability, lack of endurance and incoordination) are specifically contemplated by the schedular criteria as amplified by DeLuca and Burton.  Additionally, he is separately rated for instability of his knee.  Thus, his disability picture is contemplated by the rating schedule, and the currently assigned 40 percent schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 

In sum, the Board has found the criteria for a rating higher than 40 percent for the service-connected left knee disability are not met.  Accordingly, the claim must be denied.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


Entitlement to TDIU

Applicable legal principles

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15.

A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). 

The Veteran is service-connected for the following disabilities: internal derangement of the left knee, rated as 40 percent disabling, and instability of the left knee, separately rated as 10 percent disabling.  The combined evaluation is 50 percent.  The disability counts as a single disability for the purpose of establishing entitlement to TDIU, but still does not meet the schedular threshold of 38 C.F.R. § 4,16(a).  However, when the schedular threshold of 38 C.F.R. § 4.16(a) is not met, a TDIU on extraschedular basis may be considered under 38 C.F.R. § 4.16(b).

The Veteran was interviewed by a VA vocational rehabilitation specialist in November 2007.  The Veteran reported he was a high school graduate and had last worked in a shipping-and-receiving job from 2004-2006.  Prior to that, he worked in a shipping-and-receiving job in a different firm but was laid off from that job.  The Veteran reported 10 years experience in shipping-and-receiving.  The Veteran did not have a driver's license.  The Veteran stated his employment opportunities were limited by his service-connected knee disability, which caused problems with stooping, bending, kneeling and climbing.  
 
The Veteran had a VA orthopedic surgery follow-up in March 2008 in which the surgeon noted the Veteran had not been able to hold down a regular job for at least five years due to his knee problem.

The Veteran had a VA examination of the knee in July 2008, performed by a physician who reviewed the claims file and the medical record.  The Veteran reported he had trouble keeping a job since 2002 due to his left knee problem and had not worked for the past year, but he reported he could perform activities of daily living (ADLs).  The examiner stated that a year after surgery the Veteran continued to have impairment with regard to moderate or greater physical work but appeared to be able to do sedentary or light physical work.

The Veteran submitted a Statement in Support of Claim in July 2008 asserting that he had tried to find part-time work with a temporary agency, but the available agency did not offer health benefits and would not hire a person already disabled for either full-time or part-time work.

The Veteran submitted a letter in November 2009 stating he started work in June 1994 in a medium-duty job that did not require lifting but required lots of bending; this job made his knees flare so he left it after three years for a job requiring lighter duty.  Beginning in July 1997 he had a job as cloth inspector, but he was laid off in December 2002.  Since that time he had been unable to find a job, either temporary or full-time, that his left knee disability let him perform.    

In his formal claim for TDIU, received in August 2010, the Veteran reported having worked as a cloth inspector until December 2002.  He reported no employment thereafter until June 2005, at which time he had a job sorting chickens, but this job only lasted one month (until July 2005).  He reported no employment thereafter until a two-month temporary job in October-November 2006 as packer in a warehouse; he stated he was laid off that job due to a bad knee.  He reported education level as high school.

The Veteran submitted a statement in support of claim in October 2010 explaining that his two jobs after December 2002 were both temporary positions.  He denied having worked since October 2006.

The Veteran had a VA compensation and pension (C&P) examination of the knee in June 2012, performed by a physician who reviewed the claims file.  The examiner stated the Veteran should be able to function in occupations that require a mild amount of walking and standing on level surfaces during the day, if provided proper ergonomic modifications to avoid over-bending the knee more than 45 degrees while weight bearing.  The examiner also stated the Veteran would have no limitations for sedentary occupations.      
   
The Veteran's most recent VA examination was performed in March 2013, again by an examiner who reviewed the claims file.  The examiner stated that whether the Veteran was able to obtain or maintain substantially gainful employment was not a medical determination as much as a legal or vocational one.  However, in specific regard to the limitations relating to the left knee disability, the examiner was able to opine that the left knee disorder would cause occupational impairment of limiting standing or walking to less than 30 minutes and then rest, and avoid all activities involving squatting, stooping or kneeling; there was no limitation on sedentary employment.    

Review of the file shows the Veteran reports himself to have been unemployed since October 2006 due to his service-connected left knee disability, but three VA examiners (in July 2008, June 2012 and March 2013) have stated medical opinions that the Veteran's left knee disability does not preclude gainful sedentary employment.  As the Veteran is a high school graduate, the Board finds that sedentary employment is consistent with his educational background.

The Board accepts that the Veteran's left knee disability makes it difficult for him to find employment.  However, the sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  In this 
case the most probative medical opinion of record shows the Veteran's service-connected disability does not render him incapable of gainful employment, so entitlement to TDIU is not shown.

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Entitlement to service connection for diabetes mellitus is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for a stomach disorder is denied.

Entitlement to service connection for a right shoulder disorder is denied.

Entitlement to service connection for a left shoulder disorder is denied.

Entitlement to an extension of temporary total evaluation until January 1, 2008, is granted, subject to the rules and regulations governing the payment of VA monetary benefits.

Entitlement to a rating greater than 40 percent for the service-connected left knee disability from January 1, 2008, is denied.

Entitlement to a TDIU is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs