Citation Nr: 1602511 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 08-09 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for degenerative disc and joint disease of the lumbar spine with radiculopathy and spondylolisthesis. 2. Entitlement to service connection for degenerative arthritis of the left knee. 3. Entitlement to service connection for degenerative arthritis of the right knee. 4. Entitlement to service connection for pleurisy. 5. Entitlement to a temporary 100 percent rating for post-operative left inguinal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1973, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) and a period of Active Duty for Special Work (ADSW) from October 2006 to July 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board hearing at his local RO. In October 2013, he was scheduled for a Board hearing; however, in an October 2013 written statement the Veteran withdrew his request for a hearing. The Veteran's claims of entitlement to service connection for bilateral knee arthritis and pleurisy were initially denied by the RO in September 2004. The Veteran's current claims were initiated in May 2006, and were addressed by the RO as claims to reopen, requiring new and material evidence. In August 2007, the RO denied the Veteran's claims to reopen due to a lack of new and material evidence. In March and September 2010, the VA received additional service treatment records. These records included many duplicate records from those already contained in the claims file, but also included some records which were not previously before the VA. These new records included periodic evaluations, and thus encompass any health-related claims. As such, the Veteran's service connection claims are being reconsidered instead of treated as claims to reopen. See 38 C.F.R. § 3.156(c). In a February 2014 decision, the Board, in pertinent part, granted service connection for low back strain, denied service connection for lumbar degenerative disc disease and radiculopathy, and remanded the remaining claims for further development. The Veteran appealed the decision to deny service connection for lumbar degenerative disc disease and radiculopathy. Then, in an April 2015 order, the Court of Appeals for Veterans' Claims (Court) upheld a joint motion of the parties and remanded this matter to the Board for action consistent with the terms of the joint motion. FINDINGS OF FACT 1. The Veteran's degenerative disc and joint disease of the lumbar spine with radiculopathy and spondylolisthesis and his arthritis of the left knee are reasonably shown to have first become manifest during military service. 2. The Veteran's degenerative arthritis of the right knee clearly and unmistakably pre-existed his period of active duty for special work but was not clearly and unmistakably not aggravated by his period of active duty for special work. 3. The Veteran is not shown to have a current disability manifested by pleurisy. 4. The Veteran's left inguinal hernia surgery is not shown to have required one month or more of convalescence and the Veteran was not service connected for this disability at the time of the surgery. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative disc and joint disease of the lumbar spine with radiculopathy and spondylolisthesis, and left and right knee degenerative arthritis are met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The criteria for entitlement to service connection for pleurisy are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2015). 3. The criteria for a temporary 100 percent rating for post-operative left inguinal hernia are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.30 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and includes any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101 (24); 38 C.F.R. § 3.6. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111. Clear and unmistakable (obvious and manifest) evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 C.F.R. § 3.304(b). The standard of proof generally applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Degenerative disc and joint disease of the lumbar spine with radiculopathy and spondylolisthesis. In the April 2015 joint motion, the parties indicated that, pursuant to 32 U.S.C. § 502(a) and (f) in support of Operation Jump Start, the Veteran was ordered to active duty for special work (ADSW) from October 1, 2006, to July 15, 2008 to perform "border security/operations." The parties also indicated that an April 2008, X-ray, which showed facet osteoarthritis and lower lumbar degenerative disc disease with grade 1 spondylolisthesis of L4-5, took place during this period of ADSW. Additionally, the parties noted that in denying the Veteran's claim, the Board had found that the April 2008 treatment record was the first x-ray evidence of lumbar spine arthritis. Thus, the Board had erred by failing to discuss whether this period of ADSW was considered active duty service and whether the Veteran's facet osteoarthritis, lower lumbar degenerative disc disease (DDD), and grade I spondylolisthesis of L4 and L5 are attributable to this period of service. The parties also noted that the Veteran's Benefits Administration (VBA) generally considers ADSW as active duty unless the purpose of going to ADSW was to receive training. See also M21-1MR, Part III, Subpart v.4.C.16.i, Note (providing that, if ADSW was "for training purposes, it is not considered active duty. All other duties performed under ADSW are considered active duty"). Upon further consideration, given that the Veteran's period of ADSW involved performing border security operations, rather than training, it is reasonably shown to have been active duty. See M21-1MR, Part III, Subpart v.4.C.16.i. Thus, as the April 2008 X-ray report is the first medical evidence of record of the Veteran's lumbar facet arthritis and degenerative disk disease with spondylolisthesis, these disabilities are reasonably shown to have become manifest during active duty. Accordingly, resolving any reasonable doubt in the Veteran's favor, service connection for these disabilities is warranted. 38 C.F.R. § 3.102, 3.303; Alemany, 9 Vet. App. 518 (1996). Additionally, as the Veteran has also been diagnosed with bilateral radiculopathy associated with his disc disease, this disability must also be service-connected. The degree of these service-connected disabilities is not before the Board; rather, disability ratings will be assigned to them by the agency of original jurisdiction. B. Degenerative arthritis of the knees Regarding the left knee, as alluded to above, the evidence reasonably indicates that this knee first became symptomatic in January 1993, during a period of ACDUTRA, at which time the Veteran was assessed with "suspect retropatellar pain syndrome (RPPS)." Then, according to the Veteran's reporting at a January 1996 private medical visit, the knee continued to bother him, mostly when running (presumably in conjunction with his periods of INACDUTRA and ACDUTRA) but also minimally when not running. At that medical visit, X-rays were taken and revealed very minimal degeneration of the joint line on both knees medially. Given the relatively contemporaneous nature of the 1996 reporting, the Board finds it credible and that it reasonably establishes continuity of left knee symptomatology since his initial January 1993 left knee problem during ACDUTRA. Thus, the Veteran first experienced the left knee pathology during ACDUTRA and it is reasonably shown to have continued since that time, with left knee degenerative joint disease diagnosed three years later in January 1996. Consequently, the medical evidence and the Veteran's reporting have demonstrated continuity of the left knee arthritis-related symptomatology since its first manifestation in service. The Board notes that a November 2014 VA examiner did find that the Veteran's current left knee degenerative joint disease is less likely than not the result of military service, indicating that the Veteran was initially diagnosed with RPPS of the left knee and that RPPS did not cause degenerative joint disease. However, the examiner did not take into account the Veteran's report of continuity of symptomatology nor did he note that the initial 1993 RPPS diagnosis was only provisional (i.e. suspect RPPS) and that X-rays were apparently not performed at that time. Thus, the Board does not attach significant probative value to the November 2014 VA examiner's opinion. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Veteran's left knee degenerative joint disease first became manifest in service and service connection for this disability is warranted. 38 C.F.R. §§ 3.102, 3.303; See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding the right knee, the service treatment records reveal that in July 1989 the Veteran complained of a swollen right knee. Then the January 1996 X-rays revealed very minimal degeneration of the joint line on both knees medially and in November 1996, the Veteran was given a permanent profile against running due to right knee arthritis. Subsequently, in October 2006, the Veteran entered his period of ADSW, which as noted above, is considered active duty. There is no indication from the record that the Veteran was given an entrance examination prior to beginning this duty. Consequently, under the controlling regulation, his right knee must be presumed to have been sound upon entry into this duty unless there is clear and unmistakable evidence that the disability in question existed prior to service and was not aggravated by service. In this case, there is clear and unmistakable evidence that the Veteran's right knee degenerative joint disease pre-existed the period of ADSW as it was clearly diagnosed much earlier, in 1996. However, the existing evidence does not clearly and unmistakably show that the disability was not aggravated by the period of ADSW. (Notably, the November 2014 VA examiner, in an initial June 2013 opinion and subsequent November 2014 addendum, did generally find that the Veteran's bilateral disability was not aggravated by any occurrence during service but as he did not specifically explain why the Veteran's period of ADSW would not have aggravated the disability, the Board does not find that this constitutes clear and unmistakable evidence of non-aggravation). Consequently, the presumption is not rebutted and the Veteran must be considered to have been sound on entry. 38 C.F.R. § 3.304. Accordingly, his right knee degenerative joint disease can be attributed to his period of ADSW and service connection for this disability is warranted. 38 C.F.R. § 3.303. C. Pleurisy The Veteran's service treatment records from his first period of active duty do not show any respiratory or cardiovascular problems or any complaints of chest pain. In a March 2004 statement, the Veteran indicated that he began to experience pleurisy in the fall of 1986 during an academic phase of training at Camp Mabry. He indicated that his symptoms were chest pain and shortness of breath due to exertion. He noted that the pleurisy symptoms persisted and that on January 5, 1998, he experienced the same chest pains and shortness of breath due to exertion. In a June 2004 letter, a treating physician noted that the Veteran experienced chest pain on exertion that had been evaluated by the National Guard 8 years previously and still persisted. The physician did not attach any diagnosis to this symptom. At a November 2014 VA examination, the Veteran reported that he experienced chest pain on exertion, which had begun during service. He denied having a diagnosis of heart disease. After examination and review of the claims file, the examiner noted that an echocardiogram (ECG) in April 1992 had shown a normal sinus rhythm with occasional premature ventricular contractions. The examiner also noted that the Veteran had reported needle type pain in the chest with exertion in June 1993; chest pain when climbing in January 1998; exertional shortness of breath in March 1998, which was attributed to poor cardiovascular conditioning; and shortness of breath and chest tightness off and on for a year in January 2004, after which a cardiology consultation was recommended. The examiner noted that he scheduled the Veteran to have an ECG done as part of the current November 2014 examination but he did not follow up with the ECG department to have the testing done. However, the Veteran did state that to date, he had not been found to have any heart disease. The examiner indicated that a review of the medical evidence in conjunction with his examination did not support the presence of any current heart disease or active pleurisy. The Board notes that there is no contrary medical evidence of record (i.e. evidence tending to indicate that the Veteran does currently have a cardiovascular, respiratory or other disability manifested by pleurisy). Notably, the Veteran is competent to report symptoms he experiences, including chest pain on exertion. However, to the extent that he is asserting that he currently has an underlying disability manifested by this symptomatology, the Board finds that this positive lay assertion is outweighed by the negative findings of the VA examiner and the lack of any other medical evidence showing a diagnosed disability manifested by chest pain on exertion. Accordingly, as the weight of the evidence is against a finding of a current disability manifested by pleurisy or otherwise manifested by chest pain on exertion, this claim for service connection must be denied. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1992); Alemany, 9 Vet. App. 518 (1996). D. Temporary total rating for post-operative left inguinal hernia A temporary total rating will be granted following treatment for a service-connected disability when it is established by report at hospital discharge that one of the following occurred: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). In this case, it is neither shown nor alleged that the Veteran experienced severe post-operative residuals or immobilization by cast but he has requested a temporary total rating based on surgery requiring convalescence. In the February 2014 decision, the Board granted service connection for post-operative left inguinal hernia, finding that the hernia had been reasonably shown to be related to moving heavy items during a period of active duty for training (ACDUTRA). Also, in the February 2014 remand, the Board indicated that the Veteran had filed a claim for a temporary total rating for left inguinal hernia surgery with convalescence and noted that the record indicated that this surgery took place on August 25, 2005. However, as the claims file did not contain records specifically documenting the surgery or documenting the length of any convalescent period that was prescribed following it, the Board remanded the claim so that the agency of original jurisdiction, after obtaining a release of information from the Veteran, could attempt to obtain such records. Pursuant to the remand, the AOJ sent the Veteran an October 2014 letter, asking him to provide an appropriate release of information. However, to date the Veteran has not returned this release, leaving the AOJ unable to attempt to obtain specific documentation of the surgery and any subsequent convalescence. The record does contain a nurse manager's note indicating that the Veteran was on sick leave from his job as a nursing assistant from August 25, 2005 through September 9, 2005 due to his surgery; a September 8, 2005 return to work or school note by the Veteran's surgeon indicating that he could return to National Guard drill but was not to engage in heavy pushing and pulling, lifting over 5 pounds, bending or stooping; and a September 17, 2005 National Guard physical profile indicating that the Veteran was given a temporary profile following the hernia repair surgery and a right ankle sprain. The profile indicates that the Veteran was able to carry and fire his weapon; to wear a protective mask and all chemical defense equipment; and to walk at his own pace and distance. None of these records tend to indicate that the Veteran was required to convalesce from the surgery for a month or more, however, with the nurse's note tending to indicate that he was able to return to work as of September 10, 2005 and the surgeon's note and temporary profile indicating that he was able to participate in his regular National Guard activities as of September 17, 2005, albeit with specific limitations. In the absence of any documentation of convalescence of a month or more following the surgery, the Board does not have a basis for awarding a temporary total rating based on such convalescence. 38 C.F.R. § 4.30. Additionally, in an April 2014 rating decision, the AOJ implemented the Board's February 2014 decision by awarding service connection for post-operative left inguinal hernia and assigning a noncompensable rating effective February 15, 2006, the date the Veteran's claim for service connection was received. The Veteran did not appeal by filing a notice of disagreement within one year. Thus, this rating decision, including the effective date of service connection assigned (i.e. February 15, 2006), is final. As this effective date is approximately 6 months after the August 2005 surgery with convalescence, the Veteran's post-operative inguinal hernia was not a service-connected disability at the time of this surgery and any required convalescence (i.e. there is no indication or allegation that convalescence would have lasted until February 2006). Consequently, as a temporary total rating for convalescence after surgery may only be awarded for a disability that was service-connected at the time of that surgery and convalescence, the controlling regulations also prevent the Board from awarding such a rating as a matter of law. 38 C.F.R. § 4.30; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In sum, because convalescence from surgery extensive enough to qualify for a temporary total rating is not shown and because service connection for post-operative left inguinal hernia was not in effect until after the Veteran's surgery with convalescence, this claim must be denied. II. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in letters sent to the Veteran in May 2006 and July 2006. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records and private treatment records are associated with the claims file. Pursuant to the February 2014 remand, the Veteran was also provided an appropriate VA examination in regard to the claim for service connection for pleurisy in November 2014. Also pursuant to the remand, the AOJ obtained additional available service treatment records and as explained above, afforded the Veteran an appropriate release of information that if returned, would have allowed it to attempt to obtain records of the August 2005 hernia surgery and subsequent records pertaining to convalescence. However, as this release was not returned, the AOJ was not able to attempt to obtain this evidence. It does not appear that the AOJ attempted to identify additional periods of ACDUTRA and INACDUTRA subsequent to 2004 as instructed by the remand. However, the Veteran was not prejudiced by this omission as neither his claim for service connection for pleurisy nor his claim for a temporary total rating turn on the timing of any such additional periods. Rather, the claim for service connection for pleurisy turns on whether any current disability manifested by this underlying symptom is present and the claim for a temporary total rating turns on the effective date assigned for service connection for post-operative left inguinal hernia and/or the lack of a showing of at least one month of convalescence following the surgery. In sum, there is no indication of additional existing evidence that is necessary for a fair adjudication of the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER Service connection for degenerative disc and joint disease of the lumbar spine with radiculopathy and spondylolisthesis is granted subject to the regulations governing the payment of monetary awards. Service connection for degenerative arthritis of the left knee is granted subject to the regulations governing the payment of monetary awards. Service connection for degenerative arthritis of the right knee is granted subject to the regulations governing the payment of monetary awards. Service connection for pleurisy is denied. A temporary 100 percent rating for post-operative left inguinal hernia is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs