Citation Nr: 1328017 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 08-21 813 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a right elbow disorder, including ulnar neuropathy. 2. Entitlement to an initial rating in excess of 10 percent for left knee strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to December 2007. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2008 rating decision, by the Boise, Idaho, Regional Office (RO), which granted service connection for left knee strain and assigned a 10 percent disability rating, effective January 1, 2008; however, that rating action denied the claim for service connection for right elbow, ulnar neuropathy. The Veteran perfected a timely appeal of the rating assigned for the left knee disorder and the denial of service connection for the right elbow and ulnar neuropathy. In July 2010, the Board remanded the case for further evidentiary development. A review of the record reflects compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in December 2011. The Veteran's VA claims file has been returned to the Board for further appellate consideration. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board notes that, in the April 2013 Informal Hearing Presentation, the Veteran's representative appears to be raising claims of entitlement to higher evaluations for hypertension, degenerative joint disease of the cervical spine, and right sided sciatica. Those issues are referred to the agency of original jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. There is no competent evidence of record documenting the current existence of a right elbow disorder, or ulnar neuropathy of the right upper extremity. 2. The Veteran's service-connected left knee disorder is manifested, primarily, by complaints of pain; the weight of the evidence does not show that the left knee disability is productive of compensable limitation of motion, recurrent subluxation or moderate lateral instability, or frequent episodes of effusion. CONCLUSIONS OF LAW 1. The Veteran does not have a right elbow disorder, including ulnar neuropathy, that is the result of disease or injury incurred in or aggravated active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria have not been met for an initial rating in excess of 10 percent for left knee strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40. 4.45, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in September 2007 from the RO to the Veteran, which was issued prior to the RO decision in March 2008. Additional letters were issued in May 2008, August 2010, and October 2010. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). They were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran. No useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The service treatment records (STRs) reflect that the Veteran was seen on several occasions for complaints of left knee pain. In February 1999, the Veteran was seen for complaints of left knee pain; he stated that he was walking and his left knee started hurting. He was diagnosed with left patellar subluxation and knee strain. When seen in March 1999, the Veteran was diagnosed with acute knee pain, unclear etiology. In December 2005, the Veteran was seen for complaints of right arm pain, which radiates to the fingers. Following an evaluation, the assessment was right upper extremity paresthesias with history of cervical spine surgery. On the occasion of the separation examination in September 2007, the Veteran indicated that he had had problems with his right shoulder and continued to have problems with his right elbow; he also reported having been diagnosed with arthritis in all of his joints. The Veteran's claim for service connection for a left knee disorder (VA Form 21-526) was received in September 2007. He also submitted a statement in support of claim (VA Form 21-4138), dated in September 2007, wherein he stated that he was seeking to establish service connection for a right elbow condition with ulnar nerve involvement. The Veteran was afforded a VA examination in December 2007. At that time, he reported the sudden onset of right elbow pain and ulnar neuropathy in 1989, which was worsened as a result of a plane crash in 1999. The Veteran reported the onset of bilateral knee pain in 1998. A neurological evaluation of the right side was reported as normal. There was no evidence of sensory loss; cranial nerve function was normal, and deep tendon reflexes were 2+. The examiner reported a finding of ulnar neuropathy, secondary to degenerative disc disease of the cervical spine; he noted that the neuropathy was resolved following surgery. The examiner stated that a right elbow condition does not exist; he noted that the right elbow pain was a part of the pain resulting from the right ulnar neuropathy. The examiner added that no elbow joint condition existed. With respect to the knees, the Veteran complained of pain and instability in his knees. He also reported inflammation, with warmth and redness in the knee joints. On examination, range of motion in the knees was from 0 degrees to 130 degrees. The examiner noted painful movement of the knees; there was no crepitation, grinding, instability, clicks, patellar abnormality or meniscus abnormality. The pertinent diagnosis was bilateral knee strain; the examiner opined that it is at least as likely as not that the knee strain is due to service. Received in July 2008 were VA progress notes dated from May 2008 to July 2008. These records do not reflect any complaints, or clinical findings involving the right elbow or the knees. Received in August 2010 were additional treatment records dated from July 2008 through June 2010. These records do not reflect any complaints, or clinical findings involving the right elbow or the knees. The Veteran was afforded another VA examination in November 2010. The Veteran disclaimed any metabolic, infections, neoplastic, congenital and/or traumatic conditions to better explain his current left knee condition. It was noted that the Veteran suffered no particular injuries during service but experienced some knee pain and had one visit for left knee strain. It was noted that the knee has been stable since onset; he was not receiving any current treatment. The Veteran complained of occasional medial pain in the left knee; he denied any giving way, stiffness, weakness, instability, or incoordination. On examination, it was noted that the Veteran's gait was normal. There was no evidence of abnormal weight bearing, and there was no inflammatory arthritis. Range of motion in the left knee was from 0 degrees to 150 degrees. There was no objective evidence of pain with active motion on the left side. The examiner reported mild medial knee pain, occasional with heavy lifting. The examiner stated that the left knee strain resolved without adverse effect upon the knee; however, the years of service gave mild bilateral knee wear which is occasionally painful with severe activity. The examiner stated that there was no pain on use, including during flare-ups, no weakened movement, no excess fatigability, on incoordination, and there was no evidence of recurrent subluxation or lateral instability of the left knee. The examiner stated that the knee may hurt in the medial compartment, but this is not all the time. A peripheral nerves examination was also conducted. The Veteran also disclaimed any metabolic, infections, neoplastic, congenital and/or traumatic conditions to better explain his current right ulnar nerve condition. He did not suffer a peripheral nerve injury, but he developed the ulnar nerve condition due to the neck; it was noted that it was not from the right elbow. The Veteran reported suffering neck pain with right arm numbness after a crash resulting in neck operations in 2001 and 2006 with resolution except for occasional right little and ring finger numbness with exertion. The VA examiner noted that a sensory examination was normal on the current examination but he can have right little and ring finger paresthesia; detailed motor examination of the right upper extremity was also normal. There was no muscle atrophy. The examiner stated that there was no right elbow disability present. The examiner also stated that there is not a peripheral ulnar neuropathy at the elbow or anywhere else; he noted that the occasional minimal paresthesia in the C6-7 right area comes from the neck. The examiner observed that there was no real sign of right epicondylitis, medial or lateral although there can be mild elbow aching of undetermined etiology. III. Legal Analysis. Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a 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 be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). 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. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. As noted above, in order to establish service connection there must be an in-service disorder, a present disorder and a link between the two. In this case, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has a disability of the right elbow, including ulnar neuropathy, for which service connection may be granted. In this regard, the Board recognizes that the STRs clearly demonstrate that the Veteran was seen for right upper extremity pain following surgery on his cervical spine. In December 2005, the Veteran was seen for complaints of right arm pain, which radiates to the fingers. Following an evaluation, the assessment was right upper extremity paresthesias with history of cervical spine surgery. While complaints of right elbow pain was reported at discharge in September 2007, no pertinent diagnosis was noted. Moreover, the records do not reflect the presence of a current right elbow disorder, to include right ulnar neuropathy. Significantly, following a VA examination in December 2007, the VA examiner reported that no current right elbow condition exists. He also reported that the ulnar neuropathy resolved following the cervical spine surgery. A neurological examination was completely normal. More recently, following a VA examination in November 2010, the VA examiner noted that a sensory examination was normal on the current examination but he can have right little and ring finger paresthesia; detailed motor examination of the right upper extremity was also normal. There was no muscle atrophy. The examiner opined that there was no evidence of ulnar neuropathy. The examiner did not demonstrate any objective evidence of a right elbow disorder. It bears noting that pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999). Further, clinical demonstration of a current chronic disability is prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a present disability. The Veteran is not competent to diagnose the reason why he suffers from elbow pain. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board concludes that, without competent and probative clinical evidence of a diagnosis of a right elbow disorder and ulnar neuropathy, service connection must be denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (current disability is a prerequisite to an award of service connection). The Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. See 38 U.S.C.A. §§ 1110, 1131. Without a diagnosed or identifiable underlying disability, the analysis ends, and service connection for a right elbow disorder, including ulnar neuropathy, may not be awarded. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The claim is therefore denied. IV. Legal Analysis-Higher Evaluation. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). The Veteran's left knee disability is evaluated utilizing the criteria found at Diagnostic Code 5257, other impairment of the knee. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, a 10 percent rating is for application when there is slight recurrent subluxation or lateral instability. A 20 percent rating is for application when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is for application when there is severe recurrent subluxation or lateral instability. Here, in light of the relevant medical evidence reported above, the Board finds that the Veteran's left knee strain is, and has been, no worse than slight, which warrants the currently assigned 10 percent rating, but does not warrant a higher rating. On examination in December 2007, the Veteran only reported pain when going up and down stairs; there was no grinding, instability, crepitation or any other abnormality in the left knee. X-ray study of the left knee showed cartilage space and medial compartment mildly reduced and a calcified body at the dorsal joint line of the left knee. And, the Veteran had no additional loss of motion with repetitive use of the left knee. Range of motion in the left knee was normal with full extension and only slight decrease in flexion at 130 degrees. All of the traditional tests were negative, and the examiner concluded that there was no functional limitation imposed by the left knee disability on either the Veteran's occupational or his daily activities. Similar findings were reported in November 2010, when a VA examination noted a full range of motion in the left knee. The examiner noted that there was no evidence of recurrent subluxation or lateral instability of the left knee. And, there was no additional range of motion loss due to pain on the use including during a flare-up. The examiner further noted that there were no significant limitations of functional ability during flare-ups or when the left knee is used repeatedly. In light of the foregoing, the Board finds that the evidence does not warrant a rating higher than the currently assigned 10 percent assigned for slight disability under Diagnostic Code 5257. The Board has considered whether another rating code used for evaluating disabilities of the knee is more appropriate than the one used by the RO, but finds none. Diagnostic Code 5256 is inapt because there is no evidence of ankylosing of the knee. Diagnostic Codes 5258 and 5259 are inapt because there is no evidence of semilunar cartilage involvement. Diagnostic Codes 5260 and 5261 rate knee disabilities based on limitation of motion, which, as noted above, is not a disability for which the veteran is service connected. Diagnostic Code 5262 is inapt because the evidence does not show any related impairment of the tibia and fibula. Finally Diagnostic Code 5263 is inapt because it involves hyperextension of the knee, which has not been shown as part of the service-connected disability. Additional factors that could provide a basis for an increase have also been considered. However, it is not shown that the Veteran has any functional loss beyond that currently compensated. 38 C.F.R. §§ 4.40, 4.45, Deluca, supra. Given the lack of evidence showing unusual disability with respect to the left knee that is not contemplated by the rating schedule, the Board also concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. See 38 C.F.R. § 3.321(b) (2012). In sum, based on the all of the relevant medical evidence of record, the Board finds that the Veteran's left knee disability picture more nearly approximates the criteria required for the currently assigned 10 percent rating, and that a higher rating is not warranted at any time since the initial effective date of January 1, 2008. 38 C.F.R. § 4.7. ORDER Service connection for a right elbow disorder, ulnar neuropathy, is denied. Entitlement to an initial rating in excess of 10 percent for left knee strain is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs