Citation Nr: 1342987 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-29 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for lupus as a result of herbicide exposure. 2. Entitlement to service connection for kidney disease as a result of herbicide exposure. 3. Entitlement to service connection for a bilateral hip disorder as secondary to a service-connected back disability. 4. Entitlement to service connection for a bilateral knee disorder as secondary to a service-connected back disability. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 7. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In a September 2006 rating decision the RO denied service connection for lupus, a kidney disorder, a bilateral hip disorder, and a bilateral knee disorder, and denied reopening a service connection claim for a back disorder. In a July 2007 rating decision the RO established service connection for PTSD and assigned a 30 percent rating effective from September 29, 2006. The Veteran subsequently perfected his appeal of those determinations. The RO subsequently granted entitlement to service connection for thoracolumbar spine spondylosis and assigned a 10 percent rating effective from June 8, 2006. The decision was considered to have fully resolved the appeal as to the back disorder issue. In a November 2011 rating decision the RO denied entitlement to service connection for bilateral hearing loss and granted service connection for tinnitus. The Veteran submitted a notice of disagreement from those decisions in May 2012. The Board notes that a statement of the case as to these matters has not been issued and that in September 2012 the Veteran requested that his appeal of these issues be withdrawn. For appeal clarification purposes, the Board finds these issues may be dismissed at this time. See Manlincon v. West, 12 Vet. App. 238 (1999). In June 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal, in pertinent part, were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). In correspondence dated in November 2013 the Veteran's service representative waived agency of original jurisdiction review of evidence added to the claims file and electronic (Virtual VA) record since an August 2011 supplemental statement of the case was issued. The issues of entitlement to service connection for lupus and kidney disease as a result of herbicide exposure and entitlement to a rating in excess of 30 percent for PTSD 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. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In correspondence received by the RO in September 2012 the appellant requested a withdrawal of his appeal for entitlement to service connection for bilateral hearing loss. 2. In correspondence received by the RO in September 2012 the appellant requested a withdrawal of his appeal for entitlement to an initial rating in excess of 10 percent for tinnitus. 3. A bilateral hip disorder, identified as bilateral hip strain, is shown to have been proximately due to the Veteran's service-connected thoracolumbar spine spondylosis. 4. A bilateral knee disorder, identified as knee strain, is shown to have been proximately due to the Veteran's service-connected thoracolumbar spine spondylosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant as to the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of an appeal by the appellant as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. Bilateral hip strain was incurred secondary to a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. Bilateral knee strain was incurred secondary to a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA law provides that the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant by correspondence received by the RO in September 2012 has withdrawn his appeal as to the issues of entitlement to service connection for bilateral hearing loss and entitlement to an initial rating in excess of 10 percent for tinnitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these matters on appeal and the appeals are dismissed. VA Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in April 2006 and April 2009. The notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of his claims. The Board notes that in correspondence dated in March 2010 the Veteran reported he was receiving Social Security Administration (SSA) disability benefits. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that relevant SSA records must be obtained, but that there must be a specific reason to believe the records may give rise to pertinent information to conclude that they are relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). There is no indication in this case that SSA records may include any evidence pertinent to the issues addressed in this decision. In fact, the Veteran has testified that he first received treatment for hip and knee problems in 2009 and copies of his treatment records since 2009 are of record. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained as to these issues are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate these claims would not cause any prejudice to the appellant. Service Connection Claims Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition a veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede 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. 38 C.F.R. § 3.310(b) (effective October 10, 2006); 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen, 7 Vet. App. 439). The Veteran's claims for service connection for bilateral hip and knee disabilities was received in June 2006 and predates the changes to the regulation. The changes are not applicable. Service connection can be granted for certain chronic diseases, including degenerative arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court, however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record includes service treatment records dated in October 1969 noting the Veteran complained of bilateral knee pain and weakness. An examination revealed no abnormalities to the knees. X-ray studies were negative. A November 1970 report noted he complained of persistent knee pain with pain localized to the flexor tendons of the right knee. The examiner noted all tests were normal. An X-ray examination revealed no abnormalities. Separation examination in February 1973 included a normal evaluation of the lower extremities. In statements and testimony in support of his claims the Veteran asserted that he had bilateral hip and knee disorders secondary to his low back disorder. In an August 2006 statement he described having stepped on a lower part of ground and falling backwards striking the small of his back against a vehicle. He subsequently asserted that his hip and knee disorders developed as a result of his back disorder. On VA examination in June 2011 the Veteran reported that after he developed lupus in 1984 he began to experience symptoms including swelling, stiffness, locking, and pain. The examiner noted his posture was normal and that he walked with a normal gait, but that he was unable to walk with a tandem gait. There was tenderness to the hip joints without other abnormal symptomatology to the hips or knees. X-ray studies of the hips and knees were within normal limits. The examiner found there was no pathology for a diagnosis for either knee and provided diagnoses of trochanteric bursitis to the left and right hips which were unrelated to service. At his personal hearing in June 2012 the Veteran testified that he had also sustained injuries to his hips and knees when he injured his back during active service. He further asserted that his hip and knee disorders were secondary to his service-connected low back disability that had worsened over the years. He stated that his hip pain reverberated down to the knees and that his knees would get tender and swollen. He reported he first received treatment for hip and knee disorders in 2009. VA examination in October 2012 included diagnoses of bilateral hip and knee strain. It was noted the Veteran reported an onset of hip and knee pain in the 1990's and knee pain associated with his back injury in service that had worsened as he got older. The examiner noted that X-ray studies of the hips and knees were negative, but that records show the Veteran had complained of right knee pain during service in November 1970. The examiner concluded that the Veteran's back pain will at times cause him to have an abnormal gait and posture, putting more pressure on his knee, causing repetitive trauma resulting in pain. Therefore, the examiner concluded his "knee condition" is at least as likely as not proximately due to or related to his service-connected back condition. Concerning the hips, the examiner noted that there was no mention of hip problems in the military treatment records. However, because of the Veteran's back pain, he may develop abnormal gait and posture, causing trauma to his hips, resulting in pain. Therefore, his "hip condition" is at least as likely as not proximately due to or the result of the Veteran's service-connected back condition. Based upon the evidence of record, the Board finds that bilateral hip and knee disorders are shown to have been proximately due to or aggravated by a service-connected disability. The October 2012 VA opinions are found to be persuasive that the Veteran's present bilateral hip and knee disorders are the result of a service-connected disability. The examiner is shown to have considered the evidence of record and to have provided adequate rationale for the etiology opinions provided. The Board concludes that the examiner's discussion of "knee condition" and "hip condition" indicates that he was referring to bilateral knee and hip disorders. The claims for service connection for bilateral hip and knee strain are granted. ORDER The appeal for entitlement to service connection for bilateral hearing loss is dismissed. The appeal for entitlement to a rating in excess of 10 percent for tinnitus is dismissed. Entitlement to service connection for a bilateral hip disorder, identified as bilateral hip strain, as secondary to a service-connected back disability, is granted. Entitlement to service connection for a bilateral knee disorder, identified as bilateral knee strain, as secondary to a service-connected back disability, is granted. REMAND The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his remaining service connection and PTSD rating evaluation claims by correspondence dated in April 2006, March 2007, and April 2009. VA's duty to assist also requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that cardiovascular-renal disease and systemic lupus erythematous may be presumed service connected if manifest within one year of service, but that they are not disorders associated with herbicide agent exposure in service that may be presumed service connected. See 38 U.S.C.A. §§ 1112, 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. For a disease not included on the list of presumptive diseases, however, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the Veteran contends that he has lupus and kidney disease as a result of Agent Orange exposure during service in Vietnam. Service records show he served in the Republic of Vietnam from April 1970 to April 1971. The Board finds that the Veteran's report of having been exposed to herbicides is credible. As his service connection claims for kidney disease and lupus due to Agent Orange exposure have not been addressed by VA examination, the Board finds additional development is required prior to appellate review. Although the Veteran has not identified any pertinent evidence in his SSA disability records, efforts should be taken to obtain any available SSA records. The Court has held that SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Where SSA disability benefits have been granted, a remand to obtain SSA records is required. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records."). The Board also notes that the Veteran has asserted his belief that a rating in excess of 30 percent for his service-connected PTSD was warranted. Although the record shows he was provided a VA examination to assess his PTSD in October 2012, the examiner did not address the findings of a July 2012 Vet Center report which found the Veteran's PTSD symptoms had caused severe impairment in his social and occupational abilities. In light of the inconsistencies between these most recent evaluations, the Board finds additional examination is required for an adequate determination. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the kidney disease, lupus, and PTSD issues remaining on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain all pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence. 2. Appropriate efforts must be taken to obtain a copy of the Veteran's SSA disability determination, as well as any medical records associated with that claim. As many attempts as necessary to obtain relevant records must be taken, unless further efforts would be futile. 3. Following completion of the above, schedule the Veteran for an appropriate VA examination for opinions as to whether it is at least as likely as not (50 percent probability or greater) that he has kidney disease and/or lupus as a result of service, to include as a result of herbicide exposure. Opinions should be provided based on any examination findings; the credible lay evidence of prior symptom manifestation and treatment; a review of the medical evidence of record; and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Following completion of directive #1, schedule the Veteran for a VA PTSD examination for opinions as to the nature and severity of his service-connected PTSD. The examiner should identify all presently manifest PTSD symptoms and reconcile, to the extent possible, reports as to the severity of his PTSD on social and occupational functioning, to include the opinions of his Vet Center care providers in July 2012 with the findings at the October 2012 VA examination. Opinions should be provided based on any examination findings; the credible lay evidence of prior symptom manifestation and treatment; a review of the medical evidence of record; and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be readjudicated with consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs