Citation Nr: 1339772 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 08-34 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for bilateral pes planus with degenerative joint disease (DJD). 2. Entitlement to service connection for emphysema, to include as secondary to asbestos exposure. 3. Entitlement to service connection for chronic pulmonary disease (COPD), to include as secondary to asbestos exposure. 4. Entitlement to service connection for Raynaud's disease. 5. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2006, September 2008, and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In an August 2012 decision, the Board, in pertinent part, denied an increased rating in excess of 50 percent for bilateral pes planus with DJD and a TDIU. The Veteran appealed the decision for these issues to the United States Court of Appeals for Veterans Claims (Court). By order dated March 2013, the Court granted a Joint Motion for Remand (JMR), vacating the August 2012 Board decision for these issues and remanding the case for compliance with the terms of the JMR. In the August 2012 decision, the Board also remanded the issues of service connection for emphysema and COPD, both to include as secondary to asbestos exposure, and Raynaud's disease for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. The issues of entitlement to service connection for Raynaud's disease and a TDIU 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 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran's service-connected bilateral pes planus with DJD has been manifested by pain, swelling, spasm, fatigability and lack of mobility; and the schedular evaluation is adequate. 3. The Veteran was a smoker and treated for bronchitis, pneumonia, and shortness of breath during active service. 4. The Veteran is not currently diagnosed with emphysema or has residuals therefrom. 5. The Veteran's current diagnosis of COPD is not related to service, including alleged asbestos exposure, but rather due to his smoking history. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 50 percent for bilateral pes planus with DJD have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.14, 4.71a, Diagnostic Code (DC) 5010-5276 (2013). 2. The criteria for service connection for emphysema, to include as secondary to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. The criteria for service connection for COPD, to include as secondary to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1103, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by July 2006, January 2008, April 2008, June 2008, August 2009, September 2009, and November 2009 letters. Regarding the duty to assist, the evidence of record includes personal statements, VA outpatient treatment records, Social Security Administration (SSA) records, August 2009 Decision Review Officer (DRO) hearing transcript, and VA examination reports dated July 2008 and August 2012. The Veteran was also provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge in January 2012. There is no indication that additional records exist or, if they did, that they would provide a basis to grant these claims. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has been represented by a veterans' service organization for years, and was assisted at his Board hearing by a representative from that organization. He was asked questions about the respiratory symptoms he experienced during service; details about his alleged asbestos exposure; his history of post-service medical treatment; and the symptoms he experienced from his pes planus. Neither the Veteran nor his representative have asserted the hearing was defective in any manner or that he has been prejudiced in any way by the conduct of that hearing. Pursuant to the Board's August 2012 remand instructions, in pertinent part, the RO arranged for a VA Disability Benefits Questionnaire (DBQ) examination and medical opinion for respiratory conditions in August 2012. The examination report and medical opinion reflects the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinion offered. Hence, the Board concludes that the August 2012 examination and medical opinion were adequate and substantially complied with the August 2012 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds no further assistance to the Veteran with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Increased Rating for Bilateral Pes Planus The Veteran contends that he is entitled to a rating in excess of 50 percent for his bilateral pes planus with DJD. For the reasons that follow, the Board concludes that an increased rating is not warranted. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2013); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings, and concludes that the criteria for a rating in excess of 50 percent have at no time been met. Accordingly, staged ratings are inapplicable. See id. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran's bilateral pes planus with DJD is presently rated under DC 5010-5276. A 50 percent rating is the schedular maximum for bilateral pes planus. See 38 C.F.R. § 4.71a, DC 5276. There is no rating higher than 50 percent available under any DC pertaining to the feet. Thus, the Veteran is presently in receipt of a schedular maximum. The Veteran is also service-connected for DJD of the feet. The Veteran has a rating under DC 5010, which rates traumatic arthritis under the criteria of DC 5003 for degenerative arthritis. See 38 C.F.R. § 4.71a. The maximum rating for arthritis is 20 percent based on limitation of motion with exacerbations. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. The Board notes that there is no specific range of motion criteria for pes planus as the midfoot is not meant to flex. The Board notes that the Veteran's rating under DC 5276 is greater than the maximum rating for DJD for each foot combined. In other words, even if 20 percent for each foot were assigned for the DJD, this would not result in an increase. As for separate ratings, the arthritis ratings are based on swelling, spasm and evidence of painful motion as are the pes planus ratings criteria. The Board concludes that a separate compensable rating would constitute pyramiding and may not be awarded. See 38 C.F.R. § 4.14. Pursuant to the March 2013 JMR, the parties agreed that the Board should consider the possibility of assigning separate 30 percent ratings for each foot under 38 C.F.R. § 4.71a, DC 5284 (other foot injuries). See VAOPGCPREC 9-98 (DC 5284 is a more general DC which a variety of foot injuries may be rated). In this regard, it is noted that DC 5284 has a maximum disability rating of 30 percent for severe foot injuries. It was explained in the JMR that if two separate 30 percent ratings were combined with the bilateral factor, the combined evaluation would exceed 50 percent. See 38 C.F.R. §§ 4.25, 4.26 (2013). DC 5284 pertains only to "foot injuries," which the Board finds to be less specific and more general. This code does not apply to the nature of the Veteran's service-connected disability, since bilateral pes planus is not the result of a foot injury, but is an identifiable, diagnosed medical condition in its own right. Indeed, a reasonable reading of the relevant diagnostic codes suggests that DC 5284 is more applicable to injuries that may not have been contemplated by other diagnostic codes; however, this is not the case here. The rating schedule lists a variety of foot disorders then DC 5284 is more of a "catch all" way to rate other foot disorders. The Board concludes the use of the word "other" reasonably implies other than those disorders already identified. Here, since there is a specific diagnostic code to evaluate pes planus, rating the disability under another diagnostic code (particularly DC 5284) is simply not appropriate. See 38 C.F.R. § 4.20. The Board has also examined the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the Veteran's feet. See DeLuca v. Brown, 8 Vet. App. 202 (1995). These provisions are not for consideration where, as in this case, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board concludes that a higher schedular rating is not for application. Therefore, fully considering the lay and medical evidence of record, the Board finds that a disability rating in excess of 50 percent is not warranted for the Veteran's bilateral pes planus. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the symptomatology and impairment of the Veteran's bilateral pes planus is specifically contemplated by the schedular rating criteria, and no referral for extra-schedular consideration is required. The schedular rating criteria, DC 5010-5276, specifically provides for the Veteran's plain, swelling, fatigability, and lack of mobility as a result of his bilateral pes planus. Such symptomatology is contemplated in the currently assigned disability rating under DC 5010-5276. See 38 C.F.R. § 4.71a. As a result, referral for extra-schedular consideration for the service-connected bilateral pes planus is not required. Service Connection for Emphysema and COPD Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that service connection is warranted for emphysema and COPD due to chronic bronchitis that began during service. He testified at the January 2012 Board hearing that he had asbestos exposure while aboard Navy ships. At the August 2012 VA DBQ examination for respiratory conditions, he also asserted his history of COPD is secondary to exposure to chemicals and jet fuels in service during active duty as a jet plane electrician. Review of the service treatment records reveal that at the time of entry to service, his lungs were normal on clinical examination in April 1969. The entry examination report also noted the Veteran was a smoker and had bronchitis the week prior. During service, the Veteran continued to smoke and treatment records show repeated treatment for chronic bronchitis, as well as for pneumonia and complaints of shortness of breath. Many of these records indicate that he had complaints of shortness of breath since 1969 when he entered service. At the time of separation from service, a September 1972 examination report revealed his lungs were normal on clinical examination and chest x-ray results noted near-fatal asthma (NFA). His DD Form 214 also shows his military occupational specialty (MOS) was an aviation electrician. The Veteran was advised in a July 2006 notice letter to provide additional information regarding his claimed exposure to asbestos. In a February 2008 statement, via a VA Form 21-4138, the Veteran explained that he was exposed to stack gas paint, other chemicals, brake dust, jet fuel exhaust fumes, and asbestos while aboard the USS Kennedy aircraft carrier during most of his stay in service. He further explained at the January 2012 Board hearing that there was asbestos all over the ship. He believes the brake dust from airplanes and heavy machinery was asbestos and the berthing area contained pipes and wires covered with asbestos. The Board acknowledges the Veteran is competent to discuss his exposure to asbestos while aboard the USS Kennedy aircraft carrier during service. See, e.g., Layno, 6 Vet. App. at 465. Nevertheless, as discussed below, the Veteran does not have a current diagnosis of emphysema or residuals therefrom and his current diagnosis of COPD is related to smoking during service. On the August 2012 VA DBQ examination report for respiratory conditions, the examiner marked the Veteran's diagnosis as COPD, with onset in 2004, among the list of choices to include emphysema. VA outpatient treatment records also reveal his diagnosis of and treatment for COPD, and COPD is included on his medical problem list. Therefore, a current diagnosis of COPD is shown. Pursuant to VA outpatient treatment in June 2005, the Veteran reported a diagnosis of emphysema and he reported a history of emphysema at an August 2004 audiological consultation. Nonetheless, such records are silent as to any treatment or diagnosis of emphysema. During a July 2005 SSA disability determination examination, he also alleged having emphysema, but following the physical examination only his diagnosis of COPD was affirmed. Therefore, while the Board fully understands the Veteran's concerns, there are no findings or assertions of a current diagnosis of emphysema or residuals therefrom since separation from active service. The Veteran was informed in a July 2006 notice letter that he must have evidence of a current disability for his claims on appeal. He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence with regard to emphysema. The competent and probative evidence demonstrates the Veteran does not show the manifestation of emphysema or residuals therefrom at any time since separation from service. As such, the service connection criteria requiring the presence of a current "disability" have not been met and service connection for emphysema cannot be granted. See Brammer, 3 Vet. App. at 225. With regard to a nexus between active duty service and the current diagnosis of COPD and service, the Board finds that the competent evidence of record does not attribute COPD to active duty, despite his contentions to the contrary. Rather, his COPD is linked to his smoking history during service. Pursuant to the August 2012 VA DBQ examination for respiratory disorders, the Veteran reported he began smoking prior to service and smokes about half a pack per day since he was 18 years old. He quit for 10 years but now continues to smoke. Following the clinical evaluation, the examiner opined the Veteran's diagnosis of COPD is likely a result of years of smoking tobacco, which he started prior to service. It was explained that: There is no evidence of asbestosis on chest x-ray (cxr) . . . [and] the Veteran does not have evidence of chronic bronchitis in service treatment records (STR) even though he was given a diagnosis of 'chronic bronchitis;' the diagnosis was inaccurate. It was more likely a prolonged episode of acute bronchitis, assuming bronchitis was diagnosed accurately. There is further evidence of no history of chronic bronchitis in that his September 6, 1972 release from active duty (RAD) physical exam[ination] documents normal pulmonary exam[ination]; clinician did not document history of chronic bronchitis. COPD was diagnosed in 2004, decades after discharge from service. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Bloom v. West, 12 Vet. App. 185, 187 (1999); See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) The Board further notes the evidentiary record affirms the Veteran's smoking history. Particularly, the July 2005 SSA disability determination examination noted the Veteran currently smokes one pack per day for over 30 years, and 'smoker' is included on his list of VA outpatient medical problem list. The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between his currently-diagnosed disorder and active duty service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, COPD is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. See Robinson v. Shinseki, 557 F3.d 1355 (Fed. Cir. 2009). Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. Moreover, as to the effects of tobacco use during service, for claims filed after June 9, 1998, such as the Veteran's claim in this instance, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to use of tobacco products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. For these reasons and bases discussed above, the Board finds that the evidence is against the claims for service connection for emphysema and COPD. As a result, these claims must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. [continued on next page] ORDER An increased rating in excess of 50 percent for bilateral pes planus with DJD, to include consideration of an extra-schedular rating, is denied. Service connection for emphysema, to include as secondary to asbestos exposure, is denied. Service connection for COPD, to include as secondary to asbestos exposure, is denied. REMAND Pursuant to the August 2012 remand instructions, the RO arranged for a VA DBQ examination and medical opinion for artery and vein conditions in connection with the service connection claim for Raynaud's disease. That examination report reflects the VA examiner conducted a thorough examination of the Veteran, rendered a diagnosis of primary Raynaud phenomenon, and specified the type of vascular disease condition as Raynaud's syndrome. The VA examiner also provided a medical opinion that the Veteran's current diagnosis is not caused by or a result of in-service cold exposure solely on the basis that symptoms did not occur until decades after the alleged cold exposure. It was also reported that exposure to cold does not cause the current diagnosis of primary Raynaud phenomenon. The Board finds that the August 2012 VA DBQ medical opinion for artery and vein conditions is inadequate to render a decision for this claim because the examiner's rationale was solely based on the absence of symptoms and treatment for the Veteran's Raynaud's phenomenon since separation from service. The Board reiterates that VA has determined that continuity of symptomatology is not required to establish service connection for cold injury residuals. See VBA Training Letter (TL) 00-07 (July 17, 2000). According to the training letter, typically, there are symptoms for several days to two weeks after the cold injury, followed by a long latent period, after which, years later, late or delayed signs and symptoms may appear. Id. VBA training letters have also provided specific symptoms or conditions which are late effects of cold injuries, to include Raynaud's phenomenon. See TL 02-01 (March 29, 2002) and TL 00-07 (July 17, 2000); see also 38 C.F.R. § 4.112, Code 7122 (2013). With regard to a TDIU, a September 2012 rating decision granted service connection for mood disorder, assigned at 50 percent disabling, effect January 31, 2012. The record shows that the RO has not initially considered entitlement to a TDIU subsequent to that decision. Accordingly, the case is REMANDED for the following actions: 1. Furnish the Veteran's entire claims file to the physician who conducted the August 2012 VA DBQ examination and prepared the medical opinion (or a suitable substitute if that physician is unavailable) for artery and vein conditions. The physician must review all pertinent evidence of record and prepare an addendum opinion to as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed primary Raynaud's phenomenon is etiologically related to the in-service cold exposure. A rationale should be given for all opinions and conclusions expressed and should not be based solely on the absence of treatment records or symptoms during or after service. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 2. Thereafter, readjudicate the issues of service connection for Raynaud's syndrome and a TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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. 2013). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs