Citation Nr: 1339248 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 09-23 449A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for diabetes mellitus, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for foot/toe conditions, including as secondary to the Veteran's service connected diabetes. 3. Entitlement to service connection for bilateral knee disabilities, including as secondary to the Veteran's service connected diabetes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Montgomery, Alabama, which continued the Veteran's evaluation for his service connected diabetes at a 20 percent evaluation, and that denied the veteran's claim of entitlement to service connection for bilateral knee and foot and toe conditions. The issues of entitlement to an increased rating for diabetes mellitus, and service connection for foot/toe conditions are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral knee osteoarthritis is etiologically related to a disease, injury, or event in service, to include as secondary to the Veteran's service connected diabetes. CONCLUSION OF LAW Bilateral knee osteoarthritis was not incurred in or aggravated by service, nor may it be presumed to be so incurred, nor is it secondary to any service connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Both the Veteran's physical, and virtual, claims files have been reviewed in adjudication of this claim. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in September 2007, January 2009, and May 2012, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Board does not find an examination is required in this case. Specifically, there is no question that the Veteran has osteoarthritis of the knees, but there is also no lay or medical evidence of record linking this disability to service. As will be discussed in detail below, the Veteran has contended that he has a bilateral knee disability related to his service connected diabetes mellitus. However, although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the relationship between his type 2 diabetes mellitus and osteoarthritis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007). As such, the Board concludes that the Veteran's assertion cannot serve to suggest an association between these disorders so as to satisfy the criteria for obtaining an examination or opinion. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran claims that he incurred bilateral knee osteoarthritis from service, or as secondary to his service connected diabetes. For the below reasons, service connection is denied for this claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then they would be presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is no evidence of record showing knee arthritis manifesting to such a degree with one year of service, therefore, service connection on a presumptive basis is not warranted. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Considering all evidence of record, the Board finds that service connection is not warranted for bilateral knee osteoarthritis. In this regard, the Board notes that there is no medical evidence of record linking this disability to service or any service connected disability. Initially, the Board notes that the Veteran's service treatment records, to include a November 1969 report of separation examination, show no complaints of, or treatment for, any knee disability. A February 1970 VA examination for another claimed disability also noted that the Veteran's lower extremities were normal, and there was no evidence of any knee disability. The earliest evidence of record showing any complaints of, or treatment for, any knee disability are VA treatment records dated from 2003, 34 years after the Veteran's separation from service. These records show a diagnosis of bilateral knee osteoarthritis, and that the Veteran underwent a left total knee replacement in June 2007. They do not link either the Veteran's right or left knee disability to service. As such, with no evidence of knee disabilities in service or for many years thereafter, and with no lay or medical evidence of record linking bilateral knee osteoarthritis to service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a bilateral knee disability as directly related to service. However, the Veteran appears to be alleging, not that his knee disabilities are directly related to service, but that, rather, they are secondary to his service connected diabetes. On this secondary claim however, the Veteran's claim also fails. The Veteran's complaints of knee pain have been consistently related to his diagnosis of bilateral knee osteoarthritis, and there is simply no competent evidence of record linking the Veteran's current knee arthritis to his diagnosis of diabetes, nor has the Veteran presented any other competent evidence, such as medical treatise evidence, that might link the Veteran's diagnosis of bilateral knee arthritis to service. As noted, the possibility of a relationship between those diseases is a complex matter that falls beyond the knowledge of a lay person. For this reason, and as there is no competent evidence suggesting such a relationship, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a bilateral knee disability as secondary to the Veteran's service connected diabetes. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral knee disabilities, including as secondary to the Veteran's service connected diabetes, is denied. REMAND As to the Veteran's other claims on appeal, the Board regrets that further development is warranted. As to the Veteran's claim of entitlement to an increased rating for diabetes, the Board notes that the RO denied this claim because a June 2012 VA examination found that the Veteran did not require regulation of activities for control of his diabetes. However, the Board notes that records associated with the Veteran's virtual file appear to show that the Veteran's diabetes, shortly after this examination, was not under control. Specifically, an August 2012 outpatient treatment record indicated that the Veteran's home sugars were uncontrolled, and a September 2012 record indicated that the Veteran's diabetes was under suboptimal control. These records and others show that the Veteran's medication was being altered and increased in an attempt to get the Veteran's diabetes under control. The Board finds that this evidence shows the Veteran's diabetes was not stable shortly after his last VA examination, and because of the change in medication, may well have increased in severity. As such, the Board finds it appropriate that the Veteran be provided with another VA examination to adequately address the present level of severity of the Veteran's service connected diabetes. As to the Veteran's claim of entitlement to service connection for foot/toe conditions, the Board does note that, during the course of this appeal, an October 201o RO decision granted the Veteran entitlement to peripheral neuropathy of both lower extremities, therefore that issue is no longer before the Board. However, the Board finds other evidence of record which may indicate additional foot and toe disabilities. Specifically, treatment records show that the Veteran has been seen several times in the VA podiatry clinic for treatment of foot/toe issues, including onychomycosis and interdigital tinea. These podiatry clinic visits appear to have been scheduled in conjunction with his general treatment for diabetes; therefore the Board finds that it appears that the Veteran may have additional foot/toe disabilities related to his service connected diabetes. As such, the Board finds this claim must be remanded in order that the Veteran may be provided with a VA examination to determine whether the Veteran has any foot/toe disabilities that are related to his service connected diabetes, other than the bilateral lower extremity peripheral metropathy for which he is already service connected. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and ask him to provide any additional evidence or argument pertaining to the issues on appeal. The Veteran must be afforded a reasonable period to respond to this request, and any evidence received should be associated with the Veteran's claims file. 2. After the above development has been completed, schedule the Veteran for a VA examination to determine the current level of severity of his service connected diabetes. All relevant testing should be undertaken. The examiner should specifically note whether the Veteran's diabetes is currently stable, and under control, or not. The examiner must note whether the Veteran's diabetes requires insulin, or a restricted diet, or regulation of activities. The examiner should specifically comment on a September 2012 VA treatment record which indicated that the Veteran's diabetes was under suboptimal control, in offering his opinion. All opinions offered should be provided with adequate reasons and bases. 3. The Veteran should also be scheduled for a VA examination for his feet and toes. The examiner should identify any foot or toe disability diagnosed, to include onychomycosis and interdigital tinea. The Board notes that the Veteran is already service connected for bilateral lower extremity peripheral neuropathy. For any diagnosis for the feet or toes, the examiner should offer an opinion as ot whether it is as least as likely as not related to service, or caused or aggravated by a service-connected disability, to include his diabetes mellitus and/or peripheral neuropathy. All opinions offered should be provided with adequate reasons and bases. 4. Then, readjudicate the Veteran's claim. If his claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs